SYYB v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 The applicants are citizens of Albania. They arrived in Australia on 7 November 2003, and soon after applied for a protection visa under the Migration Act 1958 (Cth) (the Act). Their application was refused by a delegate of the first respondent on 7 June 2004, and affirmed by the Refugee Review Tribunal (the Tribunal) on 24 March 2005. This application under s 39B of the Judiciary Act 1903 (Cth) seeks to have the Tribunal's decision quashed for jurisdictional error, and other relief. 2 The first applicant is the principal applicant for a protection visa. Her husband's claim was as a member of the family unit. He did not separately claim to have grounds upon which a protection visa might be granted to him. In those circumstances, I shall hereafter refer to the first applicant as 'the applicant'. 3 The applicant is a Muslim. Her husband is a Catholic. She claimed to have a well-founded fear of persecution, so as to satisfy the criterion for the grant of a protection visa under s 36(2) of the Act, by reason of her religion, and her membership of a social group, namely a Muslim woman married to a Christian man. 4 She claimed before the Tribunal that the official religion of Albania is Islam, and that her home town of Lushnje is predominantly Muslim. Her parents and her family, including her half brother are very firm adherents to Islam. Consequently, she claimed, her relationship with the second applicant created a scandal in her town and she was threatened and abused on a number of occasions. She became pregnant in mid 2003, but she said her family and in particular her half brother forced her to have an abortion. She and the second applicant fled to Tirana, where they married, and lived in hiding as the applicant feared further persecution. She lost her teaching position in Lushnje. The applicant told the Tribunal that her half brother was a member of a fundamentalist Muslim group called Aldo Bare, and so had the capacity to fulfil his threats of serious harm to her by reason of her marriage, and that Aldo Bare was tolerated by the Albanian authorities. She described her half brother in 1997 as having been given only a short sentence, and then having been prematurely released, following a conviction for an attempted bombing, by reason of his connections with the State. That information fortified the applicant's belief that the threat towards her from her half brother and his group would also be tolerated by the authorities in Albania so she could not turn to them for protection. 5 The Tribunal found that Aldo Bare is a criminal gang leader, well known to the authorities in Albania, but that he and his gang are not fundamentalist Muslims involved in activities in support of radical Islam. It found, on the later material provided by the applicant, that her half brother had been arrested in May 2003 for planting a bomb in the Lushnje stadium in March 2000, and that his trial was continuing at the time of the Tribunal's consideration. Thus his earlier apparently brief period of imprisonment was for some other offence. It also found that the Albanian authorities did not tolerate the activities of that criminal group. Moreover, on the independent information it accepted, it noted that there is religious tolerance and religious moderation in Albania, and that the Albanian authorities take measures against those who seek to impose more radical religious regimes. It accepted that the applicant's family may have objected to her relationship with the second applicant. However, it did not conclude that those familial objections, or any adverse consequences they may have engendered in the applicant, were state tolerated or state sanctioned. Consequently, it rejected the claim that the inhabitants of Lushnje were generally opposed to the applicant by reason of her mixed marriage, or that the Albanian state itself either condoned or tolerated any threat of adverse consequences to her by reason of her mixed marriage. 6 The Tribunal concluded: ' … that the applicants' case is not credible. There seemed to be a great deal of exaggeration. Many points were implausible. A number of points were not consistent at different stages of the refugee determination process. The evidence they submitted after the hearing - even in its selectively translated form - was not supportive of their assertions. Finally, independent country information from reliable sources completely contradicts the scenario being painted by the applicants. The principal applicant sought to portray a situation where she was hounded out of her home, her town, her job and eventually her country because of a rising tide of Islamic fundamentalism which objected to her marriage to a person of another religion. Yet the country information indicates clearly that Albania is a secular country where people may identify with a particular religious background and practise it (if at all) in a moderate form. Albania, trying to join the European Union, is particularly conscious of its place between Europe and the Islamic countries to the east, and is anxious not to jeopardise its EU chances by giving Europe any reason to believe that radical Islam could find a way in through Albania. The Tribunal is not satisfied that serious harm amounting to persecution has befallen the principal applicant for a Convention reason in the past. The chance that such harm will befall her in the reasonably foreseeable future is remote. It follows that the Tribunal is not satisfied that the principal applicant has a well-founded fear of persecution for a Convention reason. 7 The applicant appeared in person at the hearing, but was assisted by her migration agent who made certain submissions on her behalf and responded to certain matters raised by counsel for the first respondent, and by the Court. The applicant's own submissions were in part made with the assistance of an interpreter. 8 The jurisdictional errors asserted by the applicant related both to the way the hearing was conducted, and to the process of reasoning of the Tribunal. 9 It was claimed that the Tribunal had failed to accord the applicant a hearing as required by s 425 of the Act because it had not provided a competent interpreter to the applicant at the hearing, and that the Tribunal had also revealed ostensible bias by insisting the hearing proceed without an adequate interpreter and then by failing to give the second applicant an opportunity to be heard both in his capacity as the second applicant and because the applicant had nominated him under s 426(2) as a person from whom she wanted the Tribunal to obtain evidence. Such a failure may amount to jurisdictional error: Perera v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 6. An alternative basis for putting the second leg of the 'bias' claim was that the Tribunal failed to comply with s 426(3) by failing to have regard to the applicant's wishes that her husband be called to give evidence at the hearing. It was also contended that the Tribunal had selectively chosen the material it relied upon in such a way as also to indicate ostensible bias, and that the Tribunal's demeanour in the course of the hearing also supported that conclusion. 10 The Tribunal's process of reasoning was said to involve jurisdictional error because it selectively (and, by inference, inappropriately) used information about Aldo Bare and his gang, and about the Albanian authorities' attitude to that gang, so that it reached a wrong conclusion. I do not need to comment upon whether that contention, if made out, could demonstrate jurisdictional error. In addition, the applicant claimed that the Tribunal had failed to address her claim that she was vulnerable to persecution by reason of her membership of a particular social group, and failed to call her husband to give evidence at the hearing, and failed to address her claim that her father's political profile was relevant to her claims. 11 The Tribunal conducted a hearing on 28 January 2005. An Albanian interpreter was present. The applicant had asked for a Tosk dialect Albanian interpreter, and the interpreter present did not speak that dialect well. The hearing was adjourned. It next took place on 18 February 2005. Again, the interpreter was said by the applicant not to be specifically a Tosk dialect speaker, although the interpreter said he commonly interpreted in the Tosk dialect. The Tribunal observed that the applicant and her husband appeared to be speaking fluently with the interpreter, and that the interpreter had previously in a number of other matters interpreted in the Tosk dialect. In the course of the discussions about the competence of the interpreter, the applicant in English said she wished to proceed with the hearing. Thereafter, at her election, she conducted the hearing in English, although on a number of occasions she sought the assistance of the interpreter, and the interpreter appears to have interpreted parts of the course of the hearing to the applicant's husband. The applicant had her migration agent present during the hearing.