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[2006] FCA 24
Federal Court of Australia
2006-02-02
Mansfield J
Original judgment source is linked above.
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.
12 In my view, the applicant has not shown that she was in effect deprived of a hearing by the Tribunal by any failure to provide a competent interpreter for her at the hearing. It provided an Albanian interpreter, and there is nothing to indicate the interpreter could not effectively interpret the applicant's statements, or the Tribunal's statements to the applicant, using the Tosk dialect. Indeed, the applicant herself said she could understand the interpreter, and that the difficulty arose only in the case of her husband. The transcript of the hearing does not demonstrate any apparent difficulties in interpretation. It flows naturally, and there are no obvious examples of inappropriate answers to questions or answers which are not responsive or meaningful so as to suggest there was any misunderstanding between the applicant and the Tribunal, either when she was speaking in English or when she was speaking through the interpreter. The particular references to the transcript to which I was taken by the applicant do not indicate any interpretation difficulties. 13 I also reject the claim that the Tribunal was ostensibly biased because it insisted on the hearing proceeding on 18 February 2005 when the applicant was reluctant to do so with the interpreter provided, or was ostensibly biased for the other reasons urged by the applicant, or for a combination of those matters. The Tribunal did not insist on the hearing proceeding on 18 February 2005. The applicant indicated she was prepared to do so. It may be that the applicant took that position because she was reluctant to irritate the Tribunal by requesting a further adjournment, but the transcript does not disclose any attitude on the part of the Tribunal which demonstrates that it might not approach its function properly and with an open mind. Indeed, given that the Tribunal was aware that the interpreter had previously interpreted in the Tosk dialect on a number of occasions, it would be surprising if the Tribunal had simply acquiesced in the applicant's initial claim that the interpreter was inadequate without discussion. The discussion itself was apparently temperate and rational. There is also nothing in the transcript of the hearing which indicates to me that the Tribunal may have had a closed mind to the applicant's claims. The exchanges between the Tribunal and the applicant are expressed in non-threatening language, and are sensible. They raise issues which the Tribunal was entitled to raise as matters of concern. The applicant was given the opportunity to respond to those concerns, including by post-hearing submissions. The applicant also, in this regard, contended that the facts that her husband was not asked to give evidence, and that her claim that her father's political profile was a relevant factor in her persecution in Albania, were not addressed also point to bias on the part of the Tribunal. In fact, the applicant's husband was given the opportunity to give evidence at the hearing, and he did so. He was not asked specific questions by the Tribunal. Neither the applicant nor the migration agent sought to ask him any questions, or to direct his attention to any topic. The applicant offered to intervene if her husband's evidence was not properly interpreted, but she did not do so. The Tribunal was also aware of the claim that the political profile of the applicant's father was relevant. It said: 'The Tribunal also notes a claim written by the adviser prior to the hearing, saying that the principal applicant's proposed mixed marriage caused a "political scandal" as her father was a leader of the Democratic Party in Lushnje. This claim was not pursued - indeed, it was not even mentioned - by the applicant at hearing (or anywhere else in the applicant's testimony) despite ample opportunity. It would appear to be an irrelevancy and in any case would make no difference to this decision.' Neither of those matters, in the circumstances, tends to indicate that the Tribunal's mind was closed to the applicant's claims at the hearing. I have also considered the claim that the Tribunal selectively used information to reach its conclusion. As that claim relates also to the other main ground of review, I discuss it below. I have rejected it. Consequently, in my judgment, there is no foundation for the claim that the Tribunal was ostensibly biased in its consideration of the applicant's claims. 14 I have reached the firm view that the Tribunal did not fall into error (whether jurisdictional or not) by the inappropriate selective use of material about Aldo Bare. The applicant asserted that it had done so, but there is really very little to support the assertion. The material in the application book to which I was referred, whilst describing the Aldo Bare gang as terrorists (in the translation provided by the applicant), does not describe the gang as a fundamentalist Muslim group. The Tribunal did not overlook that material, but had regard to it as well as to the other material it had available to determine the nature of the Aldo Bare gang. The Tribunal's reasons recite in some detail the material available, and its conclusion about the gang was one reasonably available to it. I also consider that the Tribunal's assessment of the attitude of the Albanian authorities to the Aldo Bare gang reflects a careful consideration of the material available, and a conclusion reasonably available to it. The assertion by the applicant that the Tribunal's conclusion on those matters is wrong in fact is not demonstrated, but in any event would not of itself disclose jurisdictional error on the part of the Tribunal. 15 The Tribunal clearly understood the applicant's claims as to why she had a well-founded fear of persecution for a Convention reason. It is correct that, principally, it identified that claim as based on the applicant's religion. In context, however, that is merely a shorthand way of describing the claim based upon the applicant's relationship with a Christian man, and the consequences of that relationship. It noted the claim that the applicant feared persecution by the Aldo Bare gang, tolerated by the authorities, because she had formed a relationship with a Christian man although she was a Muslim. It rejected the claim of persecution 'for reason of their religion, or for any other Convention reason'. In my view, it recognised and rejected her claim that she was or might be persecuted by the Aldo Bare gang as a Muslim woman who had a relationship with, and had married, a Christian man. It found that the Aldo Bare gang had no such motivation. It did not reject that her family, or certain members of it, may be very firmly opposed to the relationship. Hence, the political profile of her father was no more than an additional element to that opposition. But the Tribunal did not accept that family opposition to the relationship, even if violently expressed, was tolerated or condoned by the Albanian authorities. It had material to support that view. 16 As noted above, the applicant's husband was invited to give evidence at the hearing. He did so. Hence there can be no valid complaint that the Tribunal failed to comply with s 426(3) of the Act. The husband was given the opportunity to say what he wanted to say. He gave very little evidence. He was not asked by the applicant or by the migration agent to address particular matters. They could readily have done so. Nor is there any affidavit of the husband about what he might have said to the Tribunal but did not say, for whatever reason. The husband may not have fully understood the course of the hearing before he gave evidence, as not all of it appears to have been interpreted to him. As a potential witness, he did not have the right to be present during the hearing and to have all the applicant's evidence interpreted to him. There is also no evidence from him that he had any difficulty understanding the interpreter, nor any complaint that what he said was not accurately interpreted to the Tribunal. It is plain that the husband of the applicant claimed a protection visa only as a member of the applicant's family, and did not himself claim to be a refugee. He was so identified in the application for a protection visa, and in dealings with the Tribunal including the submission of the migration agent. Consequently, there is no scope for him to separately contend that he was in other respects entitled to the procedural safeguards under Div 4 of Pt 7 of the Act.
17 I have therefore reached the view that the applicant has failed to demonstrate jurisdictional error on the part of the Tribunal. The application must therefore be dismissed. The applicant should pay the first respondent's costs of the application. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.
Counsel for the Applicant: The applicant appeared in person
Solicitor for the First Respondent: Australian Government Solicitor
Date of Hearing: 9 December 2005
Date of Judgment: 2 February 2006
SYYB
Minister for Immigration & Multicultural & Indigenous Affairs
(1999) 92 FCR 6