SWCB v Minister for Immigration & Multicultural & Indigenous Affairs

The Tribunal accepted the applicant's account of this incident was true. 13 (f) After the above incident the applicant was dismissed from her job. She was employed thereafter at another government psychiatric facility though in a less prestigious position. She was allowed to travel to other countries for work purposes. 14 (v) In October 1999 the applicant claimed she was raped in her house in front of her mother by two masked men who trashed the house. She said she left Shkoder and never returned to her employment. The Tribunal expressed "serious doubts about the truth of her claim that she was raped". 15 (vi) After the alleged rape the applicant remained in Tirana for some weeks before going to Athens to visit friends for a week. She returned to Albania and then left for Australia where she arrived on 15 December 1999. She had applied for an Australian visa in August 1999 falsely claiming to be manager of an artistic group. The visa application was approved in October. The applicant explained to the Tribunal that she lied when applying for a visa because the only way to get it was to lie. 16 (vii) The applicant did not apply for a protection visa until nearly five months after her arrival in Australia. 17 (viii) The evidence the applicant gave of the bases of her fears were she to return to Albania had varying emphasis. In her original application she referred to lack of State protection for her and that she would be harmed by "persons as directed by those in authority". She related her fears to her public statements about her hospital and about its practices. The evidence she gave to the Tribunal was described by the Tribunal as follows: "The applicant said that she was afraid to return to Albania because nothing had changed. Her life might be in danger because the people who had threatened and harassed her were still free. The government did not care what happened to people and did not protect them … She said that the government was the same and criminals were all over the place. The Tribunal asked the applicant if she was afraid that if she returned to Albania, criminals whom she had helped to put in prison would seek revenge on her and the government would not protect her. The applicant confirmed that this was what she feared."

THE TRIBUNAL'S DECISION 18 The Tribunal set out at some length (12 pages) the claims made by the applicant and her elaborations of them from the making of her original visa application until the hearing before the Tribunal. 19 As I earlier indicated the Tribunal concluded the applicant was not a credible witness. It gave a number of reasons for this conclusion. First, her dishonest conduct in applying for a visa reflected adversely on her credibility. Secondly, she did not avail of the opportunities to apply for protection in the Netherlands, the Czech Republic or Germany (all countries she visited for work-related purposes after her dismissal from the hospital). She was evasive and untruthful in responding to concerns raised about her failure to seek such protection. Thirdly, the Tribunal had serious doubts about the alleged rape when considered in light of her arrangements to depart Albania and her conduct after the alleged rape. Fourthly, her delay in applying for a protection visa gave cause to further doubt the genuineness of her claims to have left Albania to escape persecution. 20 The Tribunal then indicated that it was not satisfied that "the applicant's membership or identification with the Democratic Party has led to her being persecuted by the Albanian authorities". And it commented: "Even after she criticised the Albanian government in a newspaper interview in the Netherlands in April 1998, she was not dismissed from her job by the Socialist Party government" 21 Again as I have noted, the Tribunal did not accept that the applicant's husband was killed in 1997 because he was a member of the Democratic Party. It considered he was the victim of random political murder. 22 The Tribunal then went on to identify and dismiss a number of claims which it accepted. They were as follows: "The applicant states that she was dismissed from her job as Director of the psychiatric hospital in December 1998 after she had publicly spoken about an incident when the hospital was invaded by armed men, valuables were stolen and a patient was raped. The police wanted to cover up this incident, and tried to make the applicant publicly retract her statements. She refused to do so. The applicant claims that the police accused her of lying because she was a supporter of the Democratic Party and publicly vilified her for this reason. They threatened to harm her son. The Tribunal is prepared to accept that the applicant's account of this incident is true, but is not satisfied that the treatment meted out to the applicant in connection with it was of a severity which constituted persecution. Although the applicant was dismissed from her job, she was able to continue working at another government facility, the polyclinic, albeit not in such a prestigious position. The Albanian government continued to allow her to travel to other countries for work purposes, despite her history of speaking out against the government on a previous visit to the Netherlands. The applicant said that the management of the polyclinic had not wanted her to go to the Netherlands and when she returned they would not support her project. The Tribunal does not accept that this treatment constituted persecution. It was no doubt distressing and humiliating for the applicant to be publicly accused of lying, but the authorities did not arrest her or physically mistreat her in relation to this incident. In view of the fact that the applicant was able to continue her professional life, the Tribunal does not accept that the public criticism of her by the Police Chief constituted persecution. The applicant's son was not harmed, although the applicant said that this was because she sent him away. The applicant has claimed that on a number of occasions she disobeyed the Albanian authorities and refused to diagnose criminals as being mentally ill and not responsible for their crimes when, in her professional opinion, this was not the case. She did not identify any direct repercussions from the Albanian authorities as a result of her actions. However, she claimed that she was threatened by some of these criminals after they got out of jail. The Tribunal accepts that the applicant was threatened by criminals as she claimed, but does not accept that these threats were motivated by a Convention reason. The criminals threatened the applicant out of a desire for revenge because of the harm they perceived she as an individual had done to them by not giving them the diagnoses they wanted. The Tribunal does not accept that the criminals were encouraged to harm the applicant by the Albanian authorities. There is no evidence for this claim, and if the authorities had wanted to stop the applicant from making diagnoses with which they did not agree or to punish her for having done so, or because they did not like her political views, they could have acted directly and more speedily against the applicant by dismissing her from her position. The Tribunal does not accept that the authorities would have had to act secretly if they wanted to harm the applicant. When the issue over the invasion of the hospital arose in December 1998, they appear to have acted very publicly and quickly to chastise the applicant and dismiss her. Nor does the Tribunal accept that for a Convention reason the government refused to protect the applicant from harm by the criminals. There is no evidence before the Tribunal that the applicant was denied protection because of her political views, and such a claim is not consistent with the favourable treatment the applicant received from the Socialist Party government elected in July 1997, which allowed the applicant to keep her senior job until December 1998, then employed her in a government clinic, permitted her to travel outside Albania on several occasions and tolerated her making critical comments to the media when she was visiting other countries. The applicant stated that a doctor was killed in a revenge attack in November 1998, and she assessed the killer as being normal and able to take responsibility for his crime. However, although this person was initially jailed, he was released from prison and never sentenced. He later openly boasted that he had been found to be ill and not responsible for his actions. She also noted that another doctor had been seriously injured in a revenge attack. The Tribunal accepts that revenge killings are a major problem in Albania, but they are criminal acts carried out because of actions undertaken or perceived to have been undertaken by individuals, and the Tribunal does not accept that the situations described by the applicant come under the Refugees Convention. Taking into account all of the above, the Tribunal finds that the applicant was not persecuted in the past by the Albanian authorities for reason of her political opinion or for any other Convention reason. The Tribunal accepts that the applicant was threatened by criminals, but finds that the criminals were not motivated by a Convention reason and they did not threaten the applicant at the instigation of the Albanian authorities. The Tribunal finds that the authorities did not refuse to protect the applicant for a Convention reason." 23 The Tribunal then turned to consider whether the applicant faces a real chance of persecution for a Convention reason if she returned to Albania "now or in the reasonably foreseeable future". It quoted from a UK Home Office assessment of the current situation for members of the Democratic Party. That assessment stated (in part): "3.5.5 The Democratic Party remains a legitimate political party that is free to campaign and carry out lawful activities. It is currently the main opposition party in Albania, following its defeat in the June-July 2001 elections. The Democratic Party was one of five political parties that formed the Union for Victory coalition to contest the June-July 2001 elections. Conclusion 3.5.6 Membership of the Democratic Party is unlikely to lead to persecution by the current Government or the police. Arrests that have taken place would be due to law enforcement concerns (several rallies have been illegal) and not as a result of political membership. (UK Home Office, Operational Guidance Note: Albania, April 2003)" 24 Reference was then made to comments of the Department of Foreign Affairs and Trade of January 2001 to the effect that violence is still present in Albania but it is mainly associated with organised crime or with blood feuds. The comments also noted that "the political violence that occasionally occurs is mainly perpetrated by the [Democratic Party], unhappy about losing office and also losing ground to the governing socialist party." 25 The Tribunal concluded: "As the Tribunal has found that the applicant was not persecuted in the past because of her association with the Democratic Party, and based on the information discussed above, the Tribunal is satisfied that if the applicant were to return to Albania there is not a real chance that she would be persecuted for reason of her past political opinion, or if she were to rejoin the Democratic Party and become an active member, that she would be persecuted in the future for reason of her political opinion."

THE PRESENT APPLICATION 26 Three grounds are stated in the Amended Application. They are: "1. The decision of the Tribunal was invalid and constituted a failure to exercise the power vested in it by law because the Tribunal, having found that 1.1 the applicant's husband was an active member of the Democratic party; 1.2 the applicant's husband was killed in 1997; 1.3 the applicant had spoken out against the Albanian authorities on a number of occasions in the international media; 1.4 the applicant's account of the incident in December 1998 was true, including the fact that the Chief of Police had denounced her on television as being a member of the Democratic Party; 1.5 the applicant had been threatened by criminals; 1.6 the applicant had sought the protection of the police, but been refused; failed to consider the applicant's claims that: 1.7 she was a high profile campaigner against the government, as distinct from merely being a non-active member of the Democratic party; 1.8 agents of the Albanian State imputed to her the profile of a prominent member of the Democratic party and made that profile known generally; 1.9 the criminals who threatened her, whether non-State agents or otherwise, knew of this fact and were partly encouraged or motivated by it to threaten her, and, if those claims were found to be true, failed to consider whether the applicant was, in those circumstances, a person to whom Australia owed protection obligations under the Refugees Convention. 2. The decision of the Tribunal was invalid and constituted a failure to exercise the power vested in it by law because the Tribunal, having found that 2.1 the applicant was at risk of persecution by non-state actors (being threatened by criminals); and 2.2 the applicant had sought the protection of the police, but been refused; erred in law: 2.3 by failing to make a finding as to whether the government of Albanian [sic] was both willing and able to provide the necessary level of protection to the applicant against this risk of persecution; or 2.4 in the alternative, to the extent that it did make such a finding, by applying the wrong test as to whether the applicant had a well-founded fear of being persecuted for political opinion (Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [36]-[37]). 3. The decision of the Tribunal was invalid and constituted a failure to exercise the power vested in it by law because the Tribunal erred in law in finding that the events set out at page 22 of its decision did amount to persecution within the meaning of section 91R of the Migration Act 1958 (Cth)." 27 I need only consider the first of these at any length. 28 The applicant acknowledges that the Tribunal has concluded (rightly or wrongly) that she had not been persecuted for a Convention reason in the past. Where issue is taken with the Tribunal's decision is with the manner in which the Tribunal decided the objective element of a refugee claim, i.e. is there a real chance that the applicant would face persecution for a Convention reason if the applicant returned to the country of nationality? 29 It is contended that the applicant's claim was never simply that she was, or would be, persecuted because she was a member of the Democratic Party. Her actions and the treatment she received made her stand out from an ordinary party member. Her risk of persecution ought not, in consequence, have been assessed on the basis relied upon by the Tribunal. The Tribunal should have examined how this applicant may be treated if she returned to Albania. 30 Reliance in this is placed upon the following observations of Gummow and Hayne JJ in Appellant S395 (at [73]-[77]): "The objective element requires the decision-maker to decide what may happen if the applicant returns to the country of nationality. That is an inquiry which requires close consideration of the situation of the particular applicant. It requires identification of the relevant Convention reasons that the applicant has for fearing persecution. It is necessary, therefore, to identify the 'reasons of race, religion, nationality, membership of a particular social group or political opinion' that are engaged. Because the question requires prediction of what may happen, it is often instructive to examine what has happened to an applicant when living in the country of nationality. If an applicant has been persecuted for a Convention reason, there will be cases in which it will be possible, even easy, to conclude that there is a real chance of repetition of that persecution if the applicant returns to that country. Yet absence of past persecution does not deny that there is a real chance of future persecution. Again, because the question requires prediction, a decision-maker will often find it useful to consider how persons like the applicant have been, or are being, treated in the applicant's country of nationality. That is useful because it may assist in predicting what may happen if the applicant returns to the country of nationality. But, as with any reasoning of that kind, the critical question is how similar are the bases that are being compared. Because reasoning of the kinds just described is often employed, it is perhaps inevitable that those, like the tribunal, who must deal with large numbers of decisions about who is a refugee, will attempt to classify cases. There are dangers in creating and applying a scheme for classifying claims to protection. Those dangers are greatest if the classes are few and rigidly defined. But whatever scheme is devised, classification carries the risk that the individual and distinctive features of a claim are put aside in favour of other, more general features which define the chosen class. Further, there is a serious risk of inverting the proper order of inquiry by arguing from an a priori classification given to the applicant, or the applicant's claim, to a conclusion about what may happen to the applicant if he or she returns to the country of nationality, without giving proper attention to the accuracy or applicability of the class chosen. That is, there is a real risk of assuming (wrongly) that a particular applicant will be treated in the same way as others of that race, religion, social class or political view are treated in that country." (emphasis added) 31 The respondent's contention is that the Tribunal did not assess the applicant's risk by reference to association with the Democratic Party, but that the country information it relied upon provided a complete answer to the claim.

CONSIDERATION 32 My own view, as I foreshadowed, is that the Tribunal erred in the manner in which it assessed the risk the applicant may face if she returns to Albania. 33 The Convention ground for the applicant's fear of persecution was by reason of "political opinion". But as I noted earlier, she invoked this ground in various ways: she referred to her political beliefs, her political beliefs as a member of the Democratic Party, her support for the Democratic Party and her being identified with that party. 34 When one has regard to the evidence in the matter, it is clear that her claim was not based merely upon her membership of the Democratic Party as such. Her own evidence was that she ceased to be active in the party from 1993-1994. To the extent that the Democratic Party was integral to her claim, it appears ultimately to have been because she was identified with that party so that her own actions were seen in that light. This is reflected in the manner in which she said the police responded to her actions after the hospital invasion in 1998 (which the Tribunal accepted) and in the Director of Hospitals' criticism of her interview in Holland in 1998. 35 An aspect of the applicant's case was that she was a well-known figure. The Tribunal did not address this as such although there clearly was evidence to support it particularly if regard is had to evidence she gave which was not expressly disbelieved. The applicant appeared on a number of occasions in the Albanian and international media and engaged in criticism of the government and of the conduct of psychiatric institutions when so doing. Furthermore, she occupied a significant professional position and was able both to travel internationally and to secure international professional support for her work. 36 When one turns to the conduct the applicant engaged in which expressed her beliefs and opinion, what is apparent is that it was not the ordinary conduct of a member or official of a political party "campaigning and carrying out lawful activities of that party" (to borrow the language of the UK Home Office assessment referred to above). She claims she refused to follow directions in relation to the making of psychiatric assessments and the Tribunal appears to have accepted this. She used her professional position and standing in criticising the administration of hospitals and corruption. 37 What the Tribunal appears to have failed to have done in evaluating the applicant's claims was to ask whether her actions, being those of a senior professional figure of some possible public standing, constituted the expression of political opinion either as such or because whatever the applicant did would be identified with the Democratic Party. The applicant takes no issue with this before me. However, she does raise this matter indirectly in the first ground of her application and properly so. 38 Having concluded that neither the accepted adverse actions of public officials nor the threats of criminals amounted to persecution of the applicant for a Convention reason, the Tribunal recognised that that conclusion did not relieve it of the obligation to consider whether there was, nonetheless, a real chance of future persecution. That required an assessment specific to the particular person whose fear was in question. And this the Tribunal failed to do. It fell into the very error identified by Gummow and Hayne JJ in Appellant S395. 39 The Tribunal expressed its conclusion in the following terms, basing itself on the country information to which it had referred: "… the Tribunal is satisfied that if the applicant were to return to Albania there is not a real chance that she would be persecuted for reason of her past political opinion, or if she were to rejoin the Democratic Party and become an active member, that she would be persecuted in the future for reason of her political opinion." 40 The applicant was thus classified for the purposes of her "risk assessment" in a way which did not conform with the circumstances of the political opinion claim she made. Her case was not based on persecution by reason of mere membership of a political party or of engaging in the ordinary campaigning and the lawful activities of a political party. Yet such, I would note in passing, were the matters to which the UK Home Office assessment were addressed. 41 Her claim, as I have indicated, had its own distinctive characteristics. She was a person who claimed identification with a party without actually being an active member of it; who says she was well known; and who used her professional standing and position both to criticise the government on mental health issues and corruption and to refuse to falsify her professional opinion when directed to do so. 42 It was as a claimant so circumstanced that the assessment had to be made. This did not occur. At best it was said that the applicant would not face a real chance of persecution for reason of her past political opinion. This, though, does not address what may happen if, on return, the applicant was to continue to express views critical of the government. The Tribunal could not properly expect the applicant "to hide the fact that … she holds the [views] in question": Appellant S395 at [80]. It did not consider what the consequences for her might be if she continued as she had in the past. 43 I am satisfied that the Tribunal has failed to address the question presented by s 36(2) of the Migration Act 1958 (Cth) - did Australia owe protection obligations to the applicant? 44 Given my conclusion, it is unnecessary that I express a view on the other two grounds raised in the application. Nonetheless, I will deal with each of them briefly.

Ground 2: Effective State Protection 45 The essence of this ground is that the Tribunal failed to consider whether the State was deliberately withholding protection from the applicant against the threat of revenge killing by criminals for whom she gave adverse psychiatric assessments contrary to directions given to her. This ground is set in a context in which the applicant claimed (a) that one of her colleagues had been killed and another injured in revenge attacks and (b) that she had sought police protection on a number of occasions and had been refused. Reliance is placed upon the decision of the High Court in Minister for Immigration & Multicultural Affairs v Khawar (2002) 210 CLR 1. 46 Before referring to the Tribunal's findings, I should say that the Tribunal disbelieved the applicant in respect of some of the incidents in which she alleged she claimed police protection. 47 I set out earlier a lengthy extract of the Tribunal's reasons which contains the relevant findings in relation to this matter. Twice, though in slightly different formulations, the Tribunal found (to quote one instance) "the authorities did not refuse to protect the applicant for a Convention reason". 48 The language so used may be infelicitous insofar as it might be interpreted as implying that there was a refusal for some other unstated reason. Nonetheless, I agree with the respondent Minister's submission that the findings should be interpreted as doing no more than expressing the essential, negative conclusion that there was no conduct of the authorities which, when coupled with that of the criminals, resulted in persecution of the applicant for a Convention reason: cf Minister for Immigration & Multicultural Affairs v Khawar (2002) 210 CLR 1 at 31.

Ground 3: s 91R(1)(b) and "serious harm" 49 This ground is focussed on the paragraph of the Tribunal's reasons quoted earlier which deals with the authorities' response to the applicant's actions after the hospital invasion. It is alleged that the Tribunal erred in law in finding that the actions taken against the applicant did not amount to persecution within the meaning of s 91R of the Migration Act. 50 Section 91R insofar as presently relevant provides: (1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless: … (b) the persecution involves serious harm to the person … (2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph: (a) a threat to the person's life or liberty; (b) significant physical harassment of the person; (c) significant physical ill-treatment of the person; (d) significant economic hardship that threatens the person's capacity to subsist; (e) denial of access to basic services, where the denial threatens the person's capacity to subsist; (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist." 51 It is well accepted that whether particular conduct would constitute persecution properly understood is a question of fact: VDAU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 32 at [24]. Although s 91R does not provide an exhaustive list of instances of "serious harm", as the Full Court said in SBBA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 90 at [13]: "… it does give some guidance as to the extent of the persecutory treatment that is required to fall within that description. All of the instances given involve either substantial physical detriment, a threat to a person's capacity to subsist or a threat to the person's life or liberty." 52 I am satisfied that the Tribunal's conclusion in the circumstances does not warrant any inference that it must not have properly understood what would constitute "persecution" or that it must have asked itself the wrong question. The fact finding it made was open to it. It committed no error reversible in this proceeding.

CONCLUSION 53 The applicant having made out the first ground of her application, I will make the orders sought in the application. I should add that while there has been a significant delay between the date of the Tribunal's decision and the institution of this proceeding, the applicant's affidavits satisfy me that there is a reasonable explanation for the delay and that the delay was not "unwarrantable": see Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at 103. The respondent Minister has not submitted that relief should be refused on the ground of delay. Circumstances do not exist which would warrant my taking such a course. I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

Associate: Dated: 10 September 2004 Counsel for the Applicant: Mr S Ower