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MIGRATION - ethnic Albanians from Serbia flee to Albania and thence to Australia - whether RRT extended an invitation to the appellants in compliance with s 425(1) of the Migration Act 1958 (Cth) - whether the primary Judge had erred in applying the "effective protection" test - whether the RRT had failed to undertake inquiries on the effective protection issue - whether evidence to support the RRT's finding that the appellants could enjoy effective protection in Albania.

Kola v Minister for Immigration & Multicultural Affairs [2002] FCAFC 59 (18

Kola v Minister for Immigration & Multicultural Affairs [2002] FCAFC 59 (18 March 2002); [2002] FCA 265
Last Updated: 8 May 2002


Kola v Minister for Immigration & Multicultural Affairs [2002] FCAFC 59
Kola v Minister for Immigration & Multicultural Affairs [2002] FCA 265



NOTE: CHANGES TO THE MEDIUM NEUTRAL CITATION (MNC)
The Federal Court adopted a new medium neutral citation (FCAFC) for Full Court judgments effective from 1 January 2002. Single Judge judgments will not be affected and will retain the FCA medium neutral citation.

The transitional arrangements are as follows:

* All Full Court judgments delivered prior to 1 January 2002 will retain the FCA medium neutral citation.

* All Full Court judgments delivered between 1 January 2002 to 30 April 2002 have been assigned parallel medium neutral citations in both the FCA and FCAFC series.

* All Full Court judgments delivered from 1 May 2002 will contain the FCAFC medium neutral citation only.


FEDERAL COURT OF AUSTRALIA
Kola v Minister for Immigration & Multicultural Affairs [2002] FCA 265


MIGRATION - ethnic Albanians from Serbia flee to Albania and thence to Australia - whether RRT extended an invitation to the appellants in compliance with s 425(1) of the Migration Act 1958 (Cth) - whether the primary Judge had erred in applying the "effective protection" test - whether the RRT had failed to undertake inquiries on the effective protection issue - whether evidence to support the RRT's finding that the appellants could enjoy effective protection in Albania.

Constitution, s 75(v)

Convention relating to the Status of Refugees 1951, Arts 1A(2), 33

Protocol relating to the Status of Refugees 1967

Migration Act 1958 (Cth), ss 36, 414, 420(2)(b), 425, 474, 476, 486

Migration Legislation Amendment (Judicial Review) Act 2001 (Cth)

Border Protection Legislation Amendment Act 1999 (Cth)

Migration Legislation Amendment Act (No 1) 2001 (Cth)

Al-Rahal v Minister for Immigration & Multicultural Affairs [2000] FCA 1005, cited.

Al-Rahal v Minister for Immigration & Multicultural Affairs (2001) 110 FCR 73, cited.

Minister for Immigration & Multicultural Affairs v Al Sallal (1999) 94 FCR 549, cited.

Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611, cited.

Al-Zafiry v Minister for Immigration & Multicultural Affairs [1999] FCA 443, cited.

Jones v Minister for Immigration & Ethnic Affairs (1995) 63 FCR 37, cited.

H v Minister for Immigration & Multicultural Affairs (2000) 63 ALD 43, cited.

Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833, cited.

De Silva v Minister for Immigration & Multicultural Affairs (2000) 98 FCR 364, applied.

Minister for Immigration & Multicultural Affairs v Cho (1999) 92 FCR 315, cited.

Mohammed v Minister for Immigration & Multicultural Affairs [2000] FCA 264, cited.

Win v Minister for Immigration & Multicultural Affairs (2001) 205 FCR 212, cited.

Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1, applied.

Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, cited.

Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 179 ALR 238, cited.

Minister for Immigration & Multicultural Affairs v Anthonypillai (2001) 106 FCR 426, applied.

Minister for Immigration & Multicultural Affairs v Applicant C [2001] FCA 1332, applied.

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, applied.

Minister for Immigration and Ethnic Affairs v Guo (1997) 197 CLR 559, cited.

Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343, cited.

Patto v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 119, cited.

V856/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 1018, cited.

Luu v Renevier (1989) 91 ALR 39, cited.

Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, cited.

Minister for Immigration and Ethnic Affairs v Singh (1997) 144 ALR 284, cited.

Saliba v Minister for Immigration and Ethnic Affairs (1998) 89 FCR 38, cited.

Sarrazola v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 184, cited.

ERGI ANTON KOLA & ANOR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

S 74 of 2001

ALBAN BITANI & ANOR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

S 75 of 2001

WHITLAM, SACKVILLE & KIEFEL JJ

ADELAIDE

18 MARCH 2002

IN THE FEDERAL COURT OF AUSTRALIA


SOUTH AUSTRALIA DISTRICT REGISTRY
S 74 OF 2001




ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
ERGI ANTON KOLA

FIRST APPELLANT

VALBONA KOLA

SECOND APPELLANT

AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGES:
WHITLAM, SACKVILLE & KIEFEL JJ

DATE OF ORDER:
18 MARCH 2002

WHERE MADE:
SYDNEY (HEARD IN ADELAIDE)



THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellants pay the respondent's costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA


SOUTH AUSTRALIA DISTRICT REGISTRY
S 74 OF 2001




ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
ALBAN BITANI

FIRST APPELLANT

MAJLINDA BITANI

SECOND APPELLANT

AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGES:
WHITLAM, SACKVILLE & KIEFEL JJ

DATE OF ORDER:
18 MARCH 2002

WHERE MADE:
SYDNEY (HEARD IN ADELAIDE)



THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellants pay the respondent's costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA


SOUTH AUSTRALIA DISTRICT REGISTRY
S 74 OF 2001




ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
ERGI ANTON KOLA

FIRST APPELLANT

VALBONA KOLA

SECOND APPELLANT

AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT



IN THE FEDERAL COURT OF AUSTRALIA


SOUTH AUSTRALIA DISTRICT REGISTRY
S 75 OF 2001




ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
ALBAN BITANI

FIRST APPELLANT

MAJLINDA BITANI

SECOND APPELLANT

AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT



JUDGES:
WHITLAM, SACKVILLE & KIEFEL JJ

DATE:
18 MARCH 2002

PLACE:
ADELAIDE




REASONS FOR JUDGMENT
THE COURT

1 Two appeals have been heard together. Each is an appeal against a judgment given by a Judge of this Court on 30 May 2001: Kola v Minister for Immigration & Multicultural Affairs [2001] FCA 630 ("Kola"); Bitani v Minister for Immigration & Multicultural Affairs [2001] FCA 631 ("Bitani"). In each case, his Honour dismissed an application for review of a decision of the Refugee Review Tribunal ("RRT"). His Honour heard argument in the two proceedings together because of the similar factual circumstances and what he described as the "substantial commonality" of the grounds of review relied on in those proceedings.

2 The appellants in Kola are Ergi Anton Kola and his wife Valbona Kola ("the Kolas"), while the appellants in Bitani are Alban Bitani and his wife Majlinda Bitani ("the Bitanis"). All four are ethnic Albanians who fled in 1999 to Albania from what the RRT found to be Serbia (although most Albanians apparently regard the relevant areas as part of Greater Kosovo). The Kolas and the Bitanis are friends. They come from the same area in Serbia but seem to have met in a refugee camp near Tirana in Albania.

3 Both the Kolas and the Bitanis arrived in Melbourne on 15 December 1999. They also lodged applications for protection visas on the same day, 6 January 2000. Those applications were refused by a delegate of the respondent ("the Minister") on 28 February 2000. Applications for review were subsequently filed with the RRT which, in separate decisions given on 8 August 2000, affirmed the decisions of the delegate.

4 The RRT held hearings in respect of each application on 28 June 2000. The hearings were held by videolink since, for reasons not explained on the appeal, the Kolas and Bitanis were in Queensland and the RRT member in Melbourne. The hearings were held successively, the Bitanis' application being heard before that of the Kolas. None of the appellants was represented before the RRT.

BACKGROUND

THE KOLAS

5 The RRT found that the Kolas are nationals of the Federal Republic of Yugoslavia ("FRY"). Each was born in or near Presheve, in an area of Serbia very close to the borders with Kosovo and Macedonia. The Kolas are ethnic Albanians who speak Albanian. They are Roman Catholics.

6 Mr Kola was 27 years old at the time of the RRT decision. He was educated in Presheve and worked as a self-employed painter between 1991 and 1998. Mrs Kola described herself in her application for a protection visa as a "housewife". The Kolas lived in a village near Presheve which, although in Serbia, had a mainly ethnic Albanian population.

7 Mr Kola claimed that in early April 1999 he and his wife had been forced to flee their home by the Serbian Police and Army, after he had witnessed his brother being killed. They, along with other family members, were forced to walk to the Macedonian border from where they were transported to Tirana. They were issued with refugee cards and photographic identification at a refugee camp located near the city. The Kolas stayed in the refugee camp until December 1999. While in Albania, they obtained false documents in order to leave that country for Australia.

8 In their application and in their oral evidence before the RRT, the Kolas claimed to fear persecution in Serbia by reason of their race in that, as ethnic Albanians, they were at risk of being killed or seriously harmed by Serbs. They further claimed that they could not reasonably locate to any other place in Serbia. They made no mention of any fear of persecution if they were returned to Albania.

THE BITANIS

9 Like the Kolas, the Bit anis are ethnic Albanian Roman Catholics, who lived near Presheve in Serbia. Mr Bitani, who was 25 at the date of the RRT hearing, was educated in Presheve and worked as a self-employed salesman. Mrs Bitani was also born in Presheve and until her departure for Albania, had lived in that area all her life.

10 The Bitanis fled Presheve in March 1999 and made their way to Albania where they were registered as refugees by the International Red Cross. From there they made their way to Australia. The Bitanis claimed to fear persecution in Serbia for much the same reasons as the Kolas advanced.

THE LEGISLATIVE FRAMEWORK

11 Section 36 of the Migration Act 1958 (Cth) ("Migration Act") provides for protection visas. At the time both applications were filed in this Court, s 36 was in the following terms:

"36 (1) There is a class of visas to be known as protection visas.

(2) A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.

(3) Australia is taken not to have protection obligations to a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.

(4) However, if the non-citizen has a well-founded fear of being persecuted in a country for reasons of race, religion, nationality, membership of a particular social group or political opinion, subsection (3) does not apply in relation to that country.

(5) Also, if the non-citizen has a well-founded fear that:

(a) a country will return the non-citizen to another country; and

(b) the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion;

subsection (3) does not apply in relation to the first-mentioned country."

12 If after considering a valid application the Minister is satisfied that the criteria and requirements for the grant of a visa have been met, he or she is to grant the visa: s 65(1)(a). If not so satisfied, the Minister is to refuse to grant the visa: s 65(1)(b).

13 Article 1A(2) of the Convention relating to the Status of Refugees 1951, as amended by the Protocol relating to the Status of Refugees 1967 (the "Convention"), provides that a refugee is a person who

"owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it."
Article 33(1) of the Convention provides as follows:

"(1) No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion."
14 The applications by the Kolas and the Bitanis for review of the RRT decisions affecting them were filed in this Court prior to the amendments made to the Migration Act by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), which came into force on 2 October 2001. Accordingly, the available grounds of review are those specified in s 476 of the Migration Act:

"(1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:
(a) that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;

(b) that the person who purported to make the decision did not have jurisdiction to make the decision;

(c) that the decision was not authorised by this Act or the regulations;

(d) that the decision was an improper exercise of the power conferred by this Act or the regulations;

(e) that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;

(f) that the decision was induced or affected by fraud or by actual bias;

(g) that there was no evidence or other material to justify the making of the decision."

15 It is also necessary to note the terms of sub-ss 476(2) and (4):

"476 (2) The following are not grounds upon which an application may be made under subsection (1):
(a) that a breach of the rules of natural justice occurred in connection with the making of the decision;

(b) that the decision involved an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power.

...

(4) The ground specified in paragraph (1)(g) is not to be taken to have been made out unless:

(a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or

(b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist."

16 The appellants' argument included a contention that the RRT had failed to comply with s 425(1) of the Migration Act. Section 425(1) reads as follows:

"The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review."
Section 425(1) does not apply in the circumstances mentioned in s 425(2), but none of these circumstances is present in this case.

THE RRT PROCEEDINGS

17 On 29 May 2000, the RRT sent separate letters in standard form to each of the Kolas and Bitanis, inviting them

"to come to a hearing of the Tribunal to give oral evidence, and present arguments, in support of your claims. You are also entitled to ask the Tribunal to obtain oral evidence from another person or persons."
The letter asked the appellants to complete a "Response to Hearing Invitation" form. Presumably they did so. The RRT's invitation did not specify that the hearing would explore the question of whether the appellants would enjoy effective protection in Albania from persecution for a Convention reason.

18 At each of the hearings held on 28 June 2000, the RRT member stated that one question was whether the appellants had "effective protection" in Albania. The appellants were asked some questions about circumstances in Albania (the Kolas were asked fewer questions than the Bitanis), but most of the questioning related to the circumstances the appellants had experienced or would face in Serbia.

19 In the case of the Kolas, at the outset of the hearing the RRT member said this:

"My only jurisdiction is to assess whether or not you're a person to whom Australia has protection obligations. Australia has protection obligations to you if you fit the definition of refugee of the United Nations convention and protocol and you don't have effective protection in a third country. In your case you say your country of nationality is the Federal Republic of Yugoslavia. If you're a refugee from that country, then the only relevant third country where you may have effective protection would be Albania, where you've previously lived."
At the conclusion of the hearing (not all of which was transcribed because of difficulties with the tape), the RRT member observed to the Kolas that

"on your own evidence, you can probably get effective protection in Albania."

Mr Kola responded to that question as follows:

"It's very hard to find protection in Albania because even their own people can't be protected by the government. Thank you for your hearing."
20 The evidence to which the RRT was referring appears to have been a series of questions directed to Mrs Kola (in Mr Kola's presence):

"HEARING OFFICER: And do you think you can live in - are you allowed to live in Albania?
INTERPRETER (for Mrs Kola): Legally we might live in Albania but actually, like all small countries, Albania as well has their own criminals and we have been persecuted by them. They think that we have more money than they do and we won't have - our lives will be in danger there.

HEARING OFFICER: How did they persecute you if you were in a refugee camp?

INTERPRETER (for Mrs Kola): Yes, they can persecute us because there are no rules in Albania. There's no order in Albania. And while we were in the camp they even thought - the other people from outside have gone inside the other camp and they have raped people - have raped. The men from Albania has raped the women from Kosovo. So our life, even though there, is in danger.

HEARING OFFICER: When you were in the camp were you allowed to come and go as you pleased?

INTERPRETER (for Mrs Kola): It wasn't any absolute order in the camp. It wasn't a strict order in the camp.

HEARING OFFICER: So you are free to leave whenever you want to?

INTERPRETER (for Mrs Kola): Yes, we were free to come and go.

HEARING OFFICER: Did you ever go into the town, Tirana?

INTERPRETER (for Mrs Kola): Always with my husband and with his parents."

The reference to Mr Kola's parents is explained by the fact that they, too, had fled Serbia and were renting a flat in Tirana.

21 As already noted, the RRT gave separate reasons for its decision in each of the two cases. In the Kolas' case, the RRT referred to Article 33 of the Convention and s 36(3) of the Migration Act. The RRT quoted extracts from the judgment of R D Nicholson J in Al-Rahal v Minister for Immigration & Multicultural Affairs [2000] FCA 1005 (affirmed in Al-Rahal v Minister for Immigration & Multicultural Affairs (2001) 110 FCR 73). In those extracts, Nicholson J stated that the effect of Art 33 of the Convention is that the RRT is required to consider whether "as a matter of practical reality and fact effective protection [is] available in a third country" in which the applicant is permitted to enter and live. For this proposition his Honour cited the judgment of the Full Court in Minister for Immigration and Multicultural Affairs v Al Sallal (1999) 94 FCR 549.

22 The RRT observed that Mr Kola accepted at the hearing that he and his wife were permitted to return to Albania and live there. It noted that Mr Kola's concession was consistent with country information from the United States Department of State, the United Nations High Commission for Refugees and other sources.

23 In these circumstances, the RRT proceeded to assess whether the Kolas had "effective protection in [Albania]", in accordance with the principles established by legislation and the authorities it had cited. The RRT found that:

* the Kolas had been provided with protection in Albania;

* Mr Kola's parents lived in a rented house in Tirana;

* there was no evidence that the Kolas or their relatives had been persecuted while living in Albania or that they faced a real risk of persecution in that country;

* Albania is a signatory to the Convention; and

* the country information indicated that the Kolas would not be refouled to Serbia if they returned to Albania.

The RRT continued as follows:

"The Tribunal finds that [the Kolas] have been recognised as refugees in Albania and that they have the right to return to Albania as refugees, notwithstanding the refugee cards that were legitimately issued to them when they arrived in 1999 may have expired. While they state the country is corrupt and there is general violence and lawlessness, the evidence did not disclose that [they] face a real chance of persecution for Convention reasons if they return to Albania. The Tribunal accepts that there have been incidents of rape in refugee camps. Such an experience was not encountered by [Mrs Kola] during her stay in a refugee camp and they have the alternative option of living with [Mr Kola's] parents in rented accommodation or obtaining their own accommodation. The Tribunal accepts that there are other incidents of criminal activity but...is satisfied that Kosovar Albanians are not identified and targeted for criminal acts.... [The country reports] make no mention of Kosovar Albanians being mistreated for Convention reasons or, indeed, of being victimised in Albania. The [Kolas] were not persecuted when they were previously in Albania and there is no evidence that the relatives who remained there after [they] left have been persecuted since their departure. The Tribunal is satisfied that [the Kolas] may encounter the sort of criminality that all residents in Albania encounter, but the chances that such criminality may result in serious harm are remote and, in any event, it is not Convention related. The Tribunal concludes that there is not a real chance [the Kolas] face persecution for Convention reasons in Albania.
The Tribunal is satisfied that, as a matter of practical reality and fact, to use Nicholson J's term, [the Kolas] are permitted to enter Albania and reside there and do not face a real chance of persecution for Convention reasons in that country, nor a risk that they will be refouled to the FRY. That is, they have effective protection in Albania and, as provided in section 36(3) of the Act, Australia does not have protection obligations to them.

The Tribunal concludes that [the Kolas] are outside their country of nationality and have a subjective fear of persecution should they return to FRY. Consistent with the authorities mentioned above, it does not determine whether or not those fears are well-founded, as it finds that they have effective protection in Albania on the basis that they can enter that country and reside there without a real chance of being persecuted for Convention reasons and without being refouled to the FRY. They are not, therefore, persons to whom Australia has protection obligations and do not meet that criterion for the purposes of the grant of protection visas."

24 The RRT gave virtually identical reasons for affirming the delegate's decision in relation to the Bitanis.

THE JUDGMENTS OF THE PRIMARY JUDGE

THE KOLAS

25 The primary Judge first identified the large number of grounds of review relied on by the Kolas. His Honour then noted that the appellants sought to rely on affidavit evidence, primarily in order to establish that the Kolas had not been properly informed by the RRT that an important issue in determining their claim to a protection visa was whether they could be refouled to Albania without being at risk of persecution in that country for a Convention reason. His Honour rejected the affidavits on the ground, inter alia, that proof of the relevant facts "should be effected by reference to the primary material as to what transpired before the [RRT]".

26 The primary Judge considered that a number of grounds identified by the Kolas boiled down to contentions that the RRT had wrongly regarded Art 33 of the Convention and s 36 of the Migration Act as being satisfied if:

"(a) the information before it indicated that [the Kolas] were legally permitted to enter and stay in a third or intermediate state without that state refouling them to their country of nationality where they were refugees; and
(b) there was no information before it indicating that Kosovo refugees from the former Federal Republic of Yugoslavia in Albania were persecuted in Albania for a Convention reason."

The primary Judge observed that the Kolas' submissions were in large measure premised on the proposition that s 420(2)(b) of the Migration Act, which requires the RRT to act according to substantial justice and the merits of the case, obliged the RRT to properly consider and investigate their claims. The Kolas submitted that the RRT had not done so. In his Honour's view, however, this approach had been foreclosed by the decision of the High Court in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611.

27 His Honour next addressed the submission that the RRT had erred in law by failing to tell the Kolas of the potential relevance of Art 33 of the Convention and s 36(3) of the Migration Act and failing to give them an opportunity to give evidence bearing on those issues. He rejected the submission. His Honour pointed out (at [24]) that the RRT had told the Kolas at the commencement of the hearing

"that one element of being a person to whom Australia owes protection obligations was that they not have effective protection in a third country, and it specified Albania as the only relevant third country because they had lived there. They were told that they would have to show that they do not have a right to enter and reside in Albania provided Albania would not send them back to the Federal Republic of Yugoslavia. They were also told that the Tribunal's decision on such matters is reached on their oral evidence, their written statements and information from other sources. There was no specific questioning of Mr Kola at interview about any fears he had whilst living in Albania, but he said his parents were living there. Mrs Kola explained that the applicants were registered as refugees in a camp in Albania, and that they lived there for nine months. She said:
`We saw that in Albania, that people were corrupted and you couldn't do everything, and we thought that maybe we could go from here somewhere else, and so that we did.'

She said that legally the applicants might still live in Albania, but that it was criminal elements which they feared. She said they were targeted because they had money and as victims of violent crime. However, whilst they were in the refugee camp, they were free to come and go as they wished, including to Tirana. The Tribunal at the end of the hearing told the applicants of a provisional view that, on their own evidence, they could get effective protection in Albania. Mr Kola responded:

`It's very hard to find protection in Albania because even their own people can't be protected by the government.'"

The primary Judge concluded that the transcript established that the Kolas had been informed of the need to address whether they could return and live safely and have effective protection in Albania. It was therefore not necessary to determine whether a complete failure to identify that issue could give rise to a ground of review.

28 His Honour rejected a contention that the RRT was obliged to explore whether the Kolas might be mistreated in Albania because they were Catholics of Albanian ethnicity. That issue had not been raised by them, notwithstanding that their attention had been drawn to the effective protection issue. He also rejected an argument, implicitly based on s 476(1)(g) of the Migration Act, that there was no evidence to support the RRT's conclusion that ethnic Albanian refugees from "Greater Kosovo" would not be persecuted in Albania. The RRT had based its conclusion on a review of country information relating to Albania. (The word "permitted" at [30] of the judgment appears to be a misprint for "persecuted".)

29 The final way in which the Kolas contended that the RRT had erred in law was that the RRT had not correctly applied the expression in s 36(3) of the Migration Act of "a right to enter and reside in" an intermediate third country. Rather, so it was argued, the RRT had wrongly equated a "right" with a capacity "as a matter of practical reality and fact" to enter and reside in Albania. His Honour held that:

* the concept of "effective protection" used by the authorities in relation to Art 33 of the Convention was different from "a right to enter and reside in" a third country as used in s 36(3) of the Migration Act;

* the introduction of s 36(3) of the Migration Act (by the Border Protection Legislation Amendment Act 1999 (Cth), commencing on 16 December 1999) did not change the existing operation of s 36(2);

* accordingly, the doctrine of effective protection remained intact;

* the authorities (notably the Full Court decision in Minister v Al Sallal, at 558-559, approving observations of Emmett J in Al-Zafiry v Minister for Immigration and Multicultural Affairs [1999] FCA 443) established the proposition that the issue of "effective protection" in a third country is to be determined "as a matter of practical reality and fact";

* the RRT had correctly applied the test expounded by the authorities in deciding that, by reason of the effective protection available to them in Albania, Australia did not owe protection obligations to the Kolas; and

* while the RRT did not "really address" the question posed by s 36(3), namely whether the Kolas had taken all possible steps to secure residency in Albania, there was no need for the RRT to do so since it had resolved the issue of "effective protection" against the Kolas.

30 The primary Judge rejected other submissions advanced on behalf of the Kolas. Given that these submissions were not pursued on the appeal, there is no need to refer to them.

THE BITANI JUDGMENT

31 The submissions made to the primary Judge on behalf of the Bitanis were similar, although not identical to, those made on behalf of the Kolas. His Honour adopted his reasons for judgment in Kola, but addressed the individual circumstances of the Bitanis.

32 As in Kola, the primary Judge rejected the submission that the RRT failed to alert the Bitanis to the "effective protection" issue. He quoted at length from the transcript to show that the RRT had identified the issue and indeed explored it, albeit briefly, with both Mr and Mrs Bitani. Nor did his Honour consider that there was any substance to the Bitanis' contention that the RRT had failed properly to assess their claim that they could not return to and secure effective protection in Albania (a contention not easy to reconcile with their first submission).

33 Other submissions put by the Bitanis were rejected for essentially the same reasons as the primary Judge had recorded in Kola.

THE APPELLANTS' SUBMISSIONS

34 Ms Layton QC, who appeared for the appellants, argued the Kolas' appeal first. In substance, she adopted those submissions in support of the Bitanis' appeal, although acknowledging that the facts were not identical in each case (in particular, the extent to which the RRT took steps to alert the appellants to the "effective protection" issue). The following outline of the submissions refers to the arguments made in relation to the Kolas.

35 Ms Layton submitted that the RRT had failed to conduct an inquiry into the question of whether the Kolas feared persecution in Albania, since it had neither given sufficient warning that the issue was important nor directed sufficient questions on the topic to the Kolas. She acknowledged that reliance could not be placed on s 420(2)(b) of the Migration Act to support this argument. Nonetheless, so she argued, the failure amounted to an error of law (s 476(1)(e)), an improper exercise of power (s 476(1)(d)) and a jurisdictional error (s 476(1)(b)).

36 In the course of submissions it became clear that Ms Layton was intending to include a submission that the RRT had failed to comply with the requirement in s 425(1) of the Migration Act that the RRT "invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review". It was pointed out that this submission had not been made to the primary Judge and had not been identified in the amended application for review or, for that matter, in the notice of appeal. In these circumstances, Ms Layton applied to amend the application for review in each case to include the following ground:

"The Refugee Review Tribunal failed to conduct a hearing in accordance with the statutory requirements of the Migration Act. In particular, it failed to comply with s 425(1) of the Migration Act, in that it failed to invite the appellants to appear before it to give evidence and present argument relating to the issues in relation to the decision under review. Such failure was contrary to s 476(1)(a), (b), (c) and (e) of the Migration Act."
The application to amend was opposed.

37 Next Ms Layton contended that there was no evidence or other material to justify the making of the decision (s 476(1)(g)). The submission seemed to equate the "making of the decision" for the purposes of s 476(1)(g) with the making of findings on a variety of questions. Moreover, the submission was initially made without reference to s 476(4) of the Migration Act, which limits the scope of s 476(1)(g). Ultimately, Ms Layton relied on s 476(4)(a), but without explaining why the terms of that paragraph were satisfied.

38 Ms Layton further submitted that the RRT had erred "in applying the test of refoulement". She identified three errors:

* the RRT had purported to apply the test stated by s 36(3) of the Migration Act, but confused it with the "effective protection" test;

* the RRT did not consider whether the Kolas had legally enforceable rights to enter and live in Albania; and

* to the extent that the Tribunal was purporting to apply the "effective protection" test, it had failed to make any inquiry, assessment or finding as to whether the Kolas had a well-founded fear of persecution if refouled to Albania.

39 Finally, Ms Layton contended that the primary Judge erred in rejecting the proffered affidavit evidence. However, this contention was only faintly argued and Ms Layton appeared to acknowledge that nothing of substance turned on the affidavits. It is not necessary to say anything on this issue other than we think the argument cannot be accepted.

REASONING: THE KOLAS

SECTION 425(1)

40 We deal first with the application for leave to amend the application for review of the RRT's decision by adding the ground alleging a breach of s 425(1) of the Migration Act. Ms Layton supported the application by reference to the principle that where the facts are not in dispute, or the argument raises only questions of construction or law, the Full Court may permit the point to be argued if it considers it expedient and in the interests of justice to do so: Jones v Minister for Immigration and Ethnic Affairs (1995) 63 FCR 32 at 47, per R D Nicholson J.

41 It is by no means apparent that it is expedient and in the interests of justice to entertain a point that was not taken at the trial where no satisfactory explanation for the omission has been provided: cf H v Minister for Immigration and Multicultural Affairs (2000) 63 ALD 43, at 45, per Branson and Katz JJ; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833, at [38] per Allsop J. The Kolas were represented at the trial and it is fair to say that a large number of points were taken on their behalf (including an allegation of bias on the part of the RRT, which was rejected by the primary Judge and abandoned on the appeal). Moreover, the s 425(1) point was not developed in the Kolas' written submissions on the appeal and, although reference was ultimately made in oral argument to some of the contentions, the Court was not given the benefit of a systematic analysis of the relevant principles. We need not, however, take further this aspect of the application to amend, as we think the point sought to be raised lacks substance.

42 Section 425(1) of the Migration Act, like its predecessor, has a limited operation. In De Silva v Minister for Immigration and Multicultural Affairs (2000) 98 FCR 364, the Full Court said this (at 367-368):

"The ambit of s 425(1)(a) in its earlier form was considered by a Full Court (Tamberlin, Sackville and Katz JJ) in Minister for Immigration and Multicultural Affairs v Cho (1999) 92 FCR 315; 164 ALR 339. Sackville J said (at 331; 354-355):
`Section 425(1)(a), as its language and context make clear, is directed to ensuring that the applicant has an opportunity to appear before the RRT to give evidence, in cases where the RRT cannot decide in favour of the applicant simply on the papers. It is not concerned with procedural irregularities at the hearing that do not deny the applicant the opportunity to appear to give evidence. Procedural irregularities of that kind, whatever other consequences they may have, do not constitute a breach of s 425(1)(a) and thus do not provide a ground of review under s 476(1)(a) of the Migration Act. As Tamberlin and Katz JJ have pointed out, the procedural entitlements of an applicant appearing before the RRT are carefully delineated by the Migration Act. They plainly do not include the full panoply of procedural protections that may be available in other forums.'

This passage was approved by a Full Court (Sundberg, Katz and Hely JJ) in Mohammed v Minister for Immigration and Multicultural Affairs [2000] FCA 264. The 1998 amendment of s 425 did not affect the structure of the section, and in our view what was said by Sackville J aptly describes the purpose of the current section. Adapting his Honour's language to the amended provision, that purpose is to ensure that the applicant has an opportunity to appear before the Tribunal to give evidence and present arguments in cases where the Tribunal cannot decide in favour of the applicant ` on the papers'. The section is not concerned with procedural irregularities at the hearing that do not deny the applicant the opportunity to appear and give evidence and present arguments."

It follows from De Silva v Minister that s 425(1) of the Migration Act is not concerned with any procedural irregularities at the hearing. To the extent that the Kolas contended that the RRT's conduct of the hearing breached the requirements of s 425(1), the contention must fail.

43 It was at least implicit in Ms Layton's argument that the RRT's letter of 29 May 2000 did not comply with s 425(1) because it did not specify that one issue to be explored was whether the Kolas would enjoy effective protection in Albania if returned to Albania. The argument, as we understood it, was that a letter which failed to identify the issues to be explored at the hearing, at least where the issues were likely to go beyond an assessment of the claims made by the particular applicant, could not constitute an invitation of the kind contemplated by s 425(1) of the Migration Act.

44 This argument encounters a number of difficulties. First, the language of s 425(1) is not apt to suggest that the invitation must identify the issues likely to arise at a hearing. The provision is directed to requiring the RRT to issue an invitation to an applicant to appear before the Tribunal and to give evidence and present arguments "relating to the issues arising in relation to the decision under review". Had it been intended that the invitation should identify the issues to be addressed by the RRT, it would have been easy to say so. Secondly the argument overlooks the fact that Div 4 of Pt 7 of the Migration Act, in which s 425(1) is located, sets out detailed procedures to be followed where the RRT has information personal to the applicant that would be a part of the reason for the decision: see Win v Minister for Immigration and Multicultural Affairs (2001) 105 FCR 212, at 218, per curiam. Such a detailed regime tells against s 425(1) being construed to require the invitation to appear before the RRT to specify the issues likely to arise at the hearing. Thirdly, if s 425(1) were to be read in the manner suggested on behalf of the Kolas, it would create serious practical difficulties. At the time an invitation is ordinarily sent to an applicant, it may be very difficult to identify and define the issues that are to be pursued at the hearing. New issues may emerge as evidence is gathered or further information obtained, particularly where the independent country information reflects fluid political, economic and social circumstances such as those recently experienced in Serbia, Kosovo and Albania. Must the RRT send a fresh invitation whenever a new "issue" emerges? In our view, the legislative scheme does not contemplate that such a burden should be imposed on the RRT.

45 For these reasons, we think that the point sought to be raised by the amendment cannot succeed. In our view, the appropriate course is to refuse leave to the Kolas to amend the application for review of the RRT's decision.

THE FAILURE TO INQUIRE ARGUMENT

46 The legal basis of the Kolas' submission that the RRT had failed to undertake sufficient inquiries on the question of effective protection in Albania was never made entirely clear in argument. The substance of the complaint appeared to be that the RRT had not alerted the Kolas to the significance of the effective protection issue and had asked only a few questions (directed to Mrs Kola, but in the presence of Mr Kola) concerning the circumstances they had faced in Albania and the fears they held for their safety if returned to Albania. It was said that the RRT's conduct had effectively denied the Kolas the opportunity to give evidence that they were at risk of persecution in Albania for a Convention reason.

47 Ms Layton suggested that they may have given evidence about their fear of persecution by reason of the fact that they were refugees from Serbia (or Greater Kosovo) or, perhaps, about their fear of persecution by reason of their religion. It should be noted, however, that there was no evidence tendered to the primary Judge that explained how any further material might have advanced the Kolas' case. The affidavits rejected by the primary Judge asserted that the Kolas did not realise that there was an issue concerning their safety in Albania and that they would have wanted an opportunity to obtain evidence "explaining why we did not think it safe to return to Albania". The evidence proffered on their behalf, although referring to violent incidents in Albania, did not demonstrate how any further material on which they wished to rely would establish that they had a well-founded fear of persecution in Albania for a Convention reason. It is therefore not clear that they would have been able to advance their case had they been specifically invited to give additional evidence on the effective protection issue.

48 Be that as it may, it seems to us that the Kolas' submission rested on the proposition that they had been denied a fair hearing by reason of what was said to be the RRT's failure to alert them, whether by means of an explanation, questioning or otherwise, of the need to give evidence as to why they would not enjoy effective protection if returned to Albania. The difficulty facing the Kolas is that their submission in effect invoked the ground specified in s 476(2)(a) of the Migration Act, namely that a breach of the rules of natural justice occurred in connection with the making of the RRT's decision. In other words, their contention was that the RRT had denied them procedural fairness, by failing to identify an issue that they were bound to address if they were to succeed in overturning the delegate's decision. By reason of this procedural omission, so they argued, they were denied an effective opportunity to put forward material bearing on this critical issue.

49 We did not understand Ms Layton to dispute that the Kolas' submission, in substance, amounted to a claim that a breach of the rules of natural justice had occurred in connection with the making of the RRT's decision. That being so, s 476(2)(a) of the Migration Act prevents this Court entertaining the submission. As McHugh, Gummow and Hayne JJ said in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1, at 21:

"Section 476(2) excludes grounds of breach of natural justice and unreasonable exercise of power from the grounds for review available in the Federal Court. That subsection is cast in general terms and is, therefore, to be read as qualifying the whole of s 476(1)."
50 Ms Layton sought to avoid this result by contending that a denial of natural justice (or procedural fairness) is a jurisdictional error and thus is a ground of review available to this Court under s 476(1)(b) of the Migration Act. It is doubtless true that a denial of natural justice is capable of constituting a jurisdictional error. The High Court has recently confirmed that if an officer of the Commonwealth exercising power conferred by statute does not afford procedural fairness to a person adversely affected by the power, and if the statute does not limit or extinguish the obligation to accord procedural fairness, the officer exceeds jurisdiction in the sense necessary to attract a writ of prohibition under s 75(v) of the Constitution: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, at 231, per Gaudron and Gummow JJ; at 265, per Hayne J; see also Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 179 ALR 238. But it does not follow that this Court has jurisdiction to entertain a claim for relief founded on a denial of natural justice. To so hold would be to fly in the face of the observations of the High Court in Minister v Yusuf.

51 This does not necessarily mean that an applicant for a protection visa who claims that he or she was denied natural justice by the RRT is without a remedy. Subject to the effect of recent amendments to the Migration Act, the High Court has jurisdiction under s 75(v) of the Constitution to grant relief for a denial of natural justice amounting to jurisdictional error. The Kolas may or may not be able at this stage to invoke the jurisdiction of the High Court: see now ss 474 and 486A of the Migration Act, inserted by the Migration Legislation Amendment Act (No 1) 2001 (Cth). Whether or not the Kolas are now entitled to invoke the jurisdiction of the High Court, the argument founded on an alleged denial of natural justice or procedural fairness cannot be addressed to this Court.

52 The factual foundation for the Kolas' natural justice argument was that the RRT had failed to identify the effective protection issue at the hearing. The primary judge found, contrary to the Kolas' contention, that the RRT did indicate sufficiently the need for them to address whether they could return to and live safely and have complete protection in Albania. His Honour considered it significant that the RRT on more than one occasion told the Kolas that there was an issue as to whether they had effective protection in Albania and that the RRT had addressed questions to Mrs Kola on this issue. We have reproduced extracts from the transcript relevant to his Honour's conclusion.

53 It is not necessary or perhaps even appropriate for us to determine whether the primary Judge was correct in concluding that the RRT did sufficiently identify the effective protection issue so as to give the Kolas an adequate opportunity to address it. As we have explained, s 476(2)(a) of the Migration Act precludes this Court from granting relief on the ground that the RRT denied the Kolas natural justice.

54 Ms Layton did not expressly identify how, if at all, the argument based on the RRT's failure to inquire sufficiently into the effective protection question, went beyond the ground identified in s 476(2)(a) of the Migration Act. However, as Ms Maharaj, who appeared for the Minister observed, the argument perhaps could be understood as suggesting that the RRT had failed in truth to "review" the decision of the delegate, as required by s 414 of the Migration Act.

55 If the argument was intended to be put this way, it encounters the obstacle presented by Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426. There a Full Court held, at 442, that a claim that the RRT had failed to give "proper, genuine and realistic consideration" to an application does not make out any available ground of review under Part 8 of the Migration Act. The Court recognised (at 444), however, that there

"is some scope, albeit limited, for the argument that the Tribunal may, in a particular case, have failed to `review' the decision of the Minister. In other words, although we consider the use of the formula `proper, genuine and realistic consideration' to be an unsuitable method of expressing the circumstances in which that contention can be maintained, we accept that there may be some cases where it can properly be said that the Tribunal has not in truth `considered' the application for a visa at all.
It is often dangerous to seek to elucidate a principle by the use of examples, particularly when they are far removed from the facts before the Court. However, were the Tribunal to misconceive the nature of its statutory obligation, as for example by mistakenly believing that it was engaged in appellate review of the Minister's decision (rather than a hearing do novo), it would be difficult to avoid the conclusion that it had failed to `review' the decision, in accordance with the requirements of the Act. Similarly, were the Tribunal to address the wrong question, rather than the question properly before it, there would be a constructive failure to exercise jurisdiction. Again, speaking hypothetically, were the Tribunal merely to pay lip service to its task, as for example by determining an application without reading the material filed before it, it would be difficult to conclude that it had `considered' the application."

56 In our opinion, even assuming the RRT failed to give the Kolas fair notice of the effective protection issue, it cannot be said that it failed to "review" the delegate's decision in the limited sense referred to in Minister v Anthonypillai. The RRT, as we explain later, asked the correct questions and made findings on those questions. It did not misconceive the nature of its statutory obligation.

THE NO EVIDENCE GROUND

57 Ms Layton identified seven findings that she submitted had been made without evidence, thereby enlivening the ground of review provided for in s 476(1)(g) of the Migration Act. As we have noted, Ms Layton, when pressed with the need for the Kolas to satisfy one or other of pars 476(4)(a) or (b), nominated (a) as applicable to the present case.

58 Section 476(4)(a) of the Migration Act provides that the "no evidence" ground specified in s 476(1)(g) is not to be taken as having been made out unless the decision-maker was required by law to reach that decision only if "a particular matter was established" and there was no evidence from which the decision-maker could reasonably be satisfied that the matter was established. Ms Layton did not explain how any of the seven findings could come within s 476(4)(a) and it is difficult to see how any would: cf Minister for Immigration & Multicultural Affairs v Applicant C [2001] FCA 1332, at [76]-[79]. For example, a finding that Mr Kola "agreed at the hearing that he and his spouse are permitted to return to Albania and live there" does not come within s 476(4)(a). Similarly, the finding that certain country reports made no mention of Kosovar Albanians being mistreated for Convention reasons can hardly be a "particular matter" that had to be established before the decision-maker could reach a decision to grant or not grant the Kolas protection visas.

59 In any event, the criticism of the RRT for making the findings amounted to an attempt to review the merits of the decision. For example, it was said that the RRT's finding that it was "satisfied that Kosovar Albanians are not identified and targeted for criminal acts" had no evidence to support it. In fact the RRT took into account country information that supported, if not compelled, that finding. It is true that the finding that Mr Kola "agreed that he was permitted to stay in Albania" was not precisely accurate, because a statement to that effect was made by Mrs Kola. But the statement was made in Mr Kola's presence. Clearly enough, the RRT either mistakenly referred to Mr Kola instead of Mrs Kola or intended to refer to the fact that Mr Kola did not take issue with his wife's evidence. In either case, the finding was not one that falls within s 476(4)(a) of the Migration Act.

60 The no evidence ground fails.

THE EFFECTIVE PROTECTION QUESTION

61 Ms Maharaj fairly acknowledged that the RRT's reasoning on the effective protection question reflected some confusion on its part. There are passages in the RRT's reasons which appear to assume, incorrectly, that the test for determining whether an applicant for a protection visa has a "right to enter and reside in a [third country]" for the purposes of s 36(3) of the Migration Act is the same as the test for determining whether a third country can provide effective protection to the applicant such that Australia does not owe "protection obligations" to that applicant under s 36(2) of the Migration Act: see Minister v Applicant C, at [44]-[65], per Stone J (with whom Gray and Lee JJ agreed).

62 It does not follow that, because the RRT mistakenly assumed that the tests were the same, its decision "involved" an error of law. It is well settled, as Mason CJ said in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, at 353, that a decision does not involve an error of law

"unless the error is material to the decision in the sense that it contributes to it so that, but for the error, the decision would have been, or might have been different".
See also Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, at 576-577 (joint judgment); Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343, at 350 (joint judgment).

63 The following propositions relevant to the present case emerge from the authorities:

* Australia does not owe protection obligations to a person who has established residence and acquired effective protection (in the sense of protection that ensuring there is no breach of Art 33 of the Convention) in a third country: Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543, at 562, per von Doussa J (with whom Moore and Sackville JJ agreed); Minister v Applicant C, at [20], per Stone J.

* This principle does not apply only to the case where the person has a legally enforceable right to enter and reside in a third country. It is enough that, as a matter of practical reality and fact, the person is likely to be given effective protection in the third country by being permitted to enter and live there and is neither at risk of being refouled to his or her original country, nor of his or her life or freedom being threatened on account of race, religion, nationality, membership of a particular social group or political opinion: Al-Zafiri v Minister at [26], per Emmett J, approved in Minister v Al-Sallal, at 558, per curiam; Patto v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 119, at [37], per French J, cited with approval in Minister v Applicant C, at [21], per Stone J.

* In determining the likelihood of the person being afforded effective protection, it is necessary to abjure any rigid standard and rely on a judicial assessment of the practical realities and circumstances relevant to that person's position: Al-Rahal v Minister (at first instance) at [29], approved in Minister v Applicant C, at [23], per Stone J.

* The enactment of s 36(3) of the Migration Act has not changed the operation of s 36(2) and, in particular, the operation of the effective protection principle: Minister v Applicant C, at [63]-[64], per Stone J, approving the views expressed by the primary Judge in the present case: Kola at [37]. Accordingly, as was said in Minister v Applicant C, at [65], Australia does not owe protection obligations under the Convention to:

"(a) a person who can, as a practical matter, obtain effective protection in a third country; or

(b) to a person who has not taken all possible steps to avail himself or herself of a legally enforceable right to enter and reside in a third country."

64 In our opinion, the primary Judge was correct in holding that the RRT applied the proper test for determining whether Albania would afford effective protection to the Kolas. The RRT specifically found that on the evidence, as a matter of practical reality and fact, the Kolas were permitted to enter Albania and reside there. The RRT also found that the Kolas would not face a real risk of persecution for any Convention reason in that country. (Insofar as the latter finding is concerned, von Doussa J (with whom Moore and Sackville JJ agreed) in Minister v Thiyagarajah, at 563-565, said that the standard to be applied in relation to Art 33 of the Convention was the same as that applicable in determining whether a person has a well-founded fear of persecution for a Convention reason for the purposes of Art 1A(2) of the Convention. No challenge was made in the present case to the formulation in Minister v Thiyagarajah: cf V856/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 1018, at [81], per Allsop J.) The questions posed and answered by the RRT accord with the approach taken by the authorities.

65 It is not to the point that the RRT may have mistakenly assumed that the test stated by s 36(3) of the Migration Act is the same as the test for effective protection under Art 33 of the Convention. As the primary Judge pointed out, the RRT did not need to address the matters referred to in s 36(3) of the Migration Act. Nor did the RRT address those matters, in particular whether the Kolas had a "right to enter and reside in" Albania. It is true that its findings, which were unfavourable to the Kolas, did encompass the matters referred to in s 36(4) and (5), since they overlap with the issues raised by Art 33. But it was unnecessary for the RRT to consider the application of s 36(3) of the Migration Act, since the Kolas failed in any event by reason of the effective protection doctrine.

66 There is no basis for the Kolas' contention that the RRT failed to make any inquiry, assessment or finding on the effective protection issue. As already noted, the RRT asked itself the correct questions. It had material before it, both in the form of country information and oral evidence, particularly by Mrs Kola, as to conditions in Albania and the policy of Albania with respect to granting refugee status to Kosovar Albanians (including people such as the Kolas). The RRT assessed the evidence and concluded that, notwithstanding evidence of criminal conduct in Albania, including cases of rape in refugee camps, the Kolas would enjoy effective protection in Albania and would not be refouled to Serbia. The finding may or may not have been correct as a matter of fact. But the RRT did assess the evidence and make findings on the relevant issues.

67 We should note that Ms Layton referred in written submissions, without elaboration, to cases which have held that, under the legislation then in force, the RRT might be obliged, in certain circumstances, to make inquiries on its own initiative. In Luu v Renevier (1989) 91 ALR 39, for example, a Full Court held (at 50), following Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, that a decision might be unreasonably made

"where, to the knowledge of the decision-maker, there is readily available to him or her other factual material, likely to be of critical importance in relation to a central issue for determination and which has not been obtained."
That reasoning has its origins and justifications in the concept of Wednesbury unreasonableness, unavailable in this case as a ground of review by reason of s 476(2)(b) of the Migration Act. Later cases suggested that the RRT might be subject to a duty to inquire by reason of s 420(2)(b) of the Migration Act, which obliges the RRT to act according to substantial justice and the merits of the case: see, for example, Minister for Immigration and Ethnic Affairs v Singh (1997) 144 ALR 284, at 290-291, per Black CJ, von Doussa, Sundberg and Mansfield JJ. That approach, however, as Ms Layton acknowledged, has now been foreclosed by the High Court's decision in Minister v Eshetu.

68 We did not understand Ms Layton to argue that the principle articulated in these cases survives in some form notwithstanding the enactment of s 476(2)(b) and the decision in Minister v Eshetu. Nor did she argue that the principle survives in some form that takes it outside the scope of s 476(2)(a) or (b) of the Migration Act. Nor did Ms Layton invoke the authorities that suggest that the RRT may be obliged, in certain circumstances, to address issues not expressly articulated by an applicant: cf Saliba v Minister for Immigration and Ethnic Affairs (1998) 89 FCR 38, at 50, per Sackville J; Sarrazola v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 184, at 196, per Merkel J (with whom Heerey and Sundberg JJ agreed). In any event, it is difficult to see how such authorities could apply to the circumstances of the present case where the RRT did address the correct questions and assess the evidence bearing on those questions.

REASONING: THE BITANIS

69 Ms Layton did not suggest that the Bitanis' case was materially different from that of the Kolas, or that their case was stronger in any significant respect. If anything, the Bitanis' case was weaker because the RRT explored at greater length with them the effective protection issue. Our reasons for rejecting the Bitanis' appeal appear sufficiently from the reasons for dismissing the Kolas' appeal.

CONCLUSION

70 In each case, the appeal should be dismissed. The appellants should pay the Minister's costs.

I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Whitlam, Sackville and Kiefel.



Associate:

Dated: 18 March 2002

Counsel for the Applicants:
Ms R Layton QC


Solicitor for the Applicants:

McDonald Steed

Counsel for the Respondent:
Ms S Maharaj




Solicitor for the Respondent:
Australian Government Solicitor




Date of Hearing:
6 March 2002




Date of Judgment:
18 March 2002

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