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MIGRATION - Application for relief of decision of Refugee Review Tribunal - applicant Albanian National - no grounds available for review - application dismissed.

VDAN v Minister for Immigration [2003] FMCA 194 (5 August 2003)

VDAN v Minister for Immigration [2003] FMCA 194 (5 August 2003)
Last Updated: 12 August 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VDAN v MINISTER FOR IMMIGRATION
[2003] FMCA 194



MIGRATION - Application for relief of decision of Refugee Review Tribunal - applicant Albanian National - no grounds available for review - application dismissed.

Judiciary Act 1903 (Cth), s.39B(1)

Migration Act 1958 (Cth), ss.36(2), 474, 474(1), 475A

Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth)

S157/2002 v Commonwealth of Australia (2003) HCA 2

NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 193 ALR 449

Craig v South Australia (1995) 184 CLR 163

Minister for Immigration and Multicultural and Indigenous Affairs v Eshuta (1999) 197 CLR 611

Nagarajah v Minister for Immigration and Multicultural and Indigenous Affairs (2000) FCA 1003

Waterford v Commonwealth (1987) 163 CLR 54

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Minister for Immigration and Multicultural and Indigenous Affairs v Perera (2001) FCA 1212

WADE of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCAFC 214

Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Durairajasingham (2000) 168 ALR 407

W148/OOA v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 185 ALR 703

R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598

Associated Provincial Houses Ltd v Wednesbury Corporation (1948) 1 KB 223



Applicant:
VDAN



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


MZ 938 of 2002



Delivered on:


5 August 2003



Delivered at:


Melbourne



Hearing Date:


20 December 2002



Judgment of:


Bryant CFM



REPRESENTATION

Counsel for the Applicant:


Mr Cooney (pro bono)



Counsel for the Respondent:


Mr Fairfield



Solicitors for the Respondent:


Blake Dawson Waldron



ORDERS

(1) THAT the Application be dismissed.

(2) THAT the Applicant pay the Respondent's costs fixed in the amount of $6,000.00.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

MELBOURNE


MZ 938 of 2002

VDAN


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
Introduction

1. In these proceedings the applicant, an Albanian national, seeks relief under s.39B(1) of the Judiciary Act 1903 (Cth) ("Judiciary Act") in respect of the decision of the Refugee Review Tribunal ("the Tribunal") made on 20 May 2002. The Tribunal affirmed the decision of the delegate of the respondent ("the Minister") given on 4 April 2002 to refuse to grant the applicant a protection visa ("Class XA"). The applicant seeks a review under s.475A of the Migration Act 1958 (Cth) ("the Act") and s.39B of the Judiciary Act.

2. On 17 September 2002 the application, originally filed in the Federal Court of Australia, was transferred by Merkel J to the Federal Magistrates Court for hearing.

Background

3. The applicant, a citizen of Albania, arrived in Australia on 11 March 2002. He is 30 years old and is from Lidrazid. He was refused immigration clearance at the airport and was placed in immigration detention. On 15 March 2002 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 4 April 2002 a delegate of the Minister refused his application and he sought a review of that decision to the Refugee Review Tribunal.

4. On 10 May 2002 the applicant attended the hearing before the Tribunal where he gave evidence with the assistance of an interpreter in the Albanian language. By decision dated 20 May 2002 the primary decision was affirmed.

The applicant's claims

5. In his application, the applicant claimed he had been beaten in the past for participating in anti-government demonstrations in Albania and that he had been detained once. He also claimed that between the ages of 16 and 22 years, the police had come to his home at night and that he had been taken to the police station on a number of occasions. He also claimed that he had refused to perform military service.

6. The Tribunal noted that at the hearing the applicant claimed that from 1994 he had been a member of the Democratic Party ("the DP") in Albania and that he had been involved in the elections as part of a commission. He claimed that in 1997 the Communists took over. He claimed that he had attended a demonstration, that there was an argument, and that the police had come to his house and beat him and that he had gone to the hospital. He claimed that as a result of attending the demonstration, he was persecuted by the police. He claims that he left Albania soon after and that although he had returned four or five times, he always did so in secret. He stated that he did not go to Albania for the recent 2001 elections.

7. After the decision of the delegate, the applicant provided a number of documents to be included and what purported to be: -

a) Documents relating to his charging and arrest (Courtbook 89,94);

b) A medical certificate (Courtbook 86);

c) A newspaper report (Courtbook 92); and

d) A letter from the DP (Courtbook 80).

8. The newspaper article referred to the applicant by name as a member of the Opposition. The article otherwise appeared to refer to the discharging of the Chief of the Constitutional Court as he had defended the Chief of the Prosecutor's Office who in turn, it was claimed, was a protector of organised crime. The applicant informed the Tribunal he did not know the Chief of the Constitutional Court at all and was not able to provide a reason as to why his name suddenly appeared in the newspaper when he left the country in 1997 and only returned thereafter secretly.

9. He provided a document from 15 March 1997 from the attorney's office requesting the applicant be arrested for a crime under an Article of their penal code. He stated that this related to the demonstration on the same day.

10. He provided another document from the attorney's office which also appeared to be from 15 March 1997 stating that he had performed the penal deed of "illegal manifestation".

11. The medical certificate provided by the applicant appeared to be a medical certificate that on 15 March 1997 he was beaten by the police on the head and face and had amnesia for some hours.

12. The certificate from the DP stated that he had been a member since 1994. It stated that in the parliamentary election of 1997 he had been a member of the Commission for Voting in the commune centre of his district. It stated that when the Communists came to power in 1997 he was persecuted by the police for his anti-communist ideals. It stated that he was beaten by the police and threatened in his house. It stated that along with many other DP activists that he was obliged to depart his homeland and to seek shelter in the West.

13. The Tribunal suggested to the applicant that the documents from his attorney about his assault on 15 March 1997 and his claimed departure from the country after this, could not be reconciled with the certificate from the Democratic Party as the election was in June 1997. The applicant responded that it was a local election.

14. In a submission dated 10 May 2002 the applicant's adviser referred to country information about Albania including the United States Department of State report for 2000 and Amnesty International report for 2001.

The Tribunal's decision

15. The Tribunal considered it implausible that if the applicant would be named in the newspaper on 24 April 2002 if his evidence was correct that he left in 1997 and that on his return to Albania since then he lived in secret. The Tribunal found that the newspaper article did not make much sense and in addition that the delegate's decision was made on

4 April 2002, some 20 days before the article appeared on 24 April 2002. The Tribunal thus concluded that the applicant's name had been printed in the newspaper article for the purpose of furthering his claim for refugee status as the article reported nothing genuine about the applicant.

16. The Tribunal further did not accept as genuine documents relating to the applicant's charging and arrest. The Tribunal found that the timing of these documents and the applicant's claimed response to them, that is his departure from Albania and hiding upon return, was inconsistent with him having been involved in an election later that year. The Tribunal did not accept his explanation that the elections were local elections.

17. The Tribunal formed the view that the letter from the DP referred to the national elections that occurred in June 1997 after Albania began to return to stability after the chaos following the pyramid collapse in March 1997. The Tribunal found that if the applicant was at those elections in an official capacity, it was not plausible that the authorities had already issued a warrant for his arrest. The Tribunal found that if they had issued a warrant for his arrest it is not plausible he would have been assisting in those elections. As a result, the Tribunal concluded the documents had also been contrived to further his claims for refugee status.

18. The Tribunal noted that the applicant appeared to be stating that in March 1997 he was involved in a demonstration and had problems with the police, including being beaten by them at his house. The Tribunal did not accept that claim. The Tribunal noted that in support of this claim the applicant provided a medical certificate which included a history that he was beaten by the police. The Tribunal noted that the applicant had provided other documents which the Tribunal considered contrived to support his claims. The Tribunal noted that this document was also produced with the other documents, all of which were supplied by the applicant in support of his claim after the applicant's primary decision.

19. The Tribunal also noted the certificate from the doctor was inconsistent with the letter from the DP which indicated that the applicant's problems began with the elections. The Tribunal posited that if the applicant was assaulted because of his DP involvement in March 1997 the Tribunal would have expected the DP to have referred to this as the commencement of his problems. For those reasons, the Tribunal did not consider the medical certificate was genuine.

20. Secondly, the Tribunal did not find the applicant's evidence about the demonstration and beating convincing.

21. Thirdly, the Tribunal noted that in March 1997 the DP was still in power and as a result it was not plausible that the police would chase after the applicant for involvement in the DP demonstration at this time or beat him simply because of involvement in a DP demonstration at this time. Given these matters, the Tribunal found that the applicant was not beaten by the authorities following a demonstration on

15 March 1997.

22. The Tribunal did not accept the applicant had any significant involvement in politics. Whilst the Tribunal accepted that he may be am member of the Democratic Party, as demonstrated by the card he produced, his evidence and lifestyle did not indicate that he had any significant involvement.

23. The Tribunal noted that the applicant's evidence was that he had spent large amounts of time in Greece as an itinerant worker and whilst it was possible to do so and maintain an interest in politics, no explanation as to how that happened had been advanced by the applicant. In addition, the Tribunal noted that the applicant had not detailed and had denied any political involvement since 1997. His lack of involvement during this period the Tribunal believed was an indicator of lack of involvement in the previous period.

24. The Tribunal found that the letter from the DP did not attest to his involvement. It stated that he was persecuted by the police when the Communists came to power in 1997 which the Tribunal found was not consistent with his claims of problems stemming from March 1997 which was well before the Socialist Party came to power in June of that year. The Tribunal noted that he had produced other documents, such as a newspaper, about himself which the Tribunal considered to be concocted. As a result, the Tribunal did not accept the contents of the letter from the DP that he was involved in their activities. The Tribunal found that the applicant did not have any significant involvement with the Democratic Party.

25. The Tribunal noted from the country information that since 1997 there had been further elections which the DP participated in and won a number of seats. The Tribunal considered the situation of Azjan Haklaj as reported by Amnesty, but was satisfied from country information that there are many other DP members in Albania who do not have problems. The Tribunal noted that as it was not satisfied that the applicant had any significant involvement before 1997 and he had no involvement since then, the Tribunal did not accept that there was a real chance that his DP membership would cause him problems if he now returned to Albania. The Tribunal did not accept that he has any problems stemming from 1997 when the Democratic Party lost power.

26. The Tribunal noted that although he referred to a detention, which may be the one claimed in 1997, he also put his claims rather differently than he did at the hearing. He claimed generally of ongoing harassment from the age of 16 to 22. However, the Tribunal did not accept that this occurred. The Tribunal noted that he did not provide any explanation as to why the authorities would have an interest in him over this period of time and it would mean that he had significant involvement in politics, which the Tribunal found he did not. The Tribunal noted that for about the last two years the DP was in power in any event.

27. The Tribunal noted the applicant had also referred in his application to his refusal to do military service. The Tribunal did not accept the authorities were interested in pursuing him to do military service and would have expected that if that was the case his problems in this regard would have arisen a long time ago. The Tribunal did not accept that if he now returned at the age of 30 years there is any real chance he would be sought for military service. The Tribunal also noted that the applicant had not indicated any Convention reason for wanting to avoid military service.

28. The Tribunal concluded, taking the evidence as a whole, that it was not satisfied the applicant was a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol and did not satisfy the criterion set out in s.36(2) of the Act for a protection visa.

The current law

29. Following the High Court decision in S157/2002 v Commonwealth of Australia (2003) HCA 2, I must determine whether there was an error on the part of the Tribunal which would enliven the entitlement to an order under s.39B of the Judiciary Act notwithstanding s.474 of the Act.

30. In 2003, the High Court gave judgment in S157/2002. The High Court determined that the privitive clause provision in s.474(1) of the Act properly constructed is a valid enactment. It found the proper construction of the Act, including s.474 imposed an obligation of providing a fair hearing as a limitation upon the decision making authority; see per Gleeson CJ at 37-38 (Gaudron, McHugh, Gummow, Kirby and Hayne JJ at 83; and per Callinan J at 160). The question of whether procedural fairness must still be accorded by the Tribunal so that it acts within its jurisdiction in the light of the Migration Legislation Amendment (Procedural Fairness) Act 2002 is yet to be determined.

31. The decision in S157/2002 overrules NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 193 ALR 449 and does so necessarily in relation to the Tribunal's obligation to accord procedural fairness, and in relation to the way in which NAAV found that s.474 had expanded the jurisdiction of the Tribunal.

32. An administrative tribunal exceeds its power and commits jurisdictional error if it identifies a wrong issue, asks itself a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion in a way that effects the purported exercise of the Tribunal's power (Craig v South Australia (1995) 184 CLR 163 per McHugh, Gummow, Hayne JJ at 179).

33. The Tribunal is required to consider the elements of each of the claims made by the applicant. The Tribunal was entitled to exercise all the powers and discretions that are conferred by the Act. That is, to consider a valid visa application made by an applicant and in doing so to have regard to all the information required to be taken into account under the code of procedure laid down in Part 2, Division 3, Subdivision AB of the Act.

34. It is a matter for the Tribunal as to the probity it accords the various aspects of the evidence put before it (see Minister for Immigration and Multicultural and Indigenous Affairs v Eshetu (1999) 197 CLR 611). The Tribunal is not required to adopt an uncritical acceptance of all and any allegations put before it by the applicant.

35. To summarise, the Tribunal's findings in considering the documentary evidence were as follows:

a) It is implausible that he would be named in a newspaper on

24 April 2002 given his evidence that he left in 1997 and his returns to Albania since then have been secret. In addition, the newspaper article did not make sense as he did not know the other parties in the article. The Tribunal concluded that his name had been printed in the article for the purpose of furthering his claim for refugee status and that the article was not genuine.

b) The certificate from the DP said that:

"In parliamentary election that set place in 1997 year ... (the applicant) as a member of Commission of Voting in commune centre of Librazhg district.

When the ex-Communists came to power in 1997 year, (the applicant) is persecuted by local police for his anti-communist ideals."

The Tribunal observed that the letter from the DP was referring to the national elections which occurred in June 1997. When the Tribunal had pointed out to the applicant that the election was in June 1997 and therefore this document could not be reconciled with others which asserted that he was assaulted in March 1997, the applicant stated that it was a local election. The Tribunal did not accept his explanation about a local election.

c) The other documents presented by the applicant were a warrant for his arrest and a medical certificate which indicated that he was beaten by the police. Both these documents referred to events which occurred on 15 March 1997. The Tribunal found that these documents were inconsistent with the letter from the DP which referred to the national elections which the Tribunal found had occurred in June 1997. The Tribunal noted:

i) If he was at the elections (in June) in an official capacity it was not plausible the authorities had already issued a warrant for his arrest. If they had issued a warrant for his arrest it is not plausible that he would have been assisting in the elections;

ii) A medical certificate indicating he was assaulted in March is inconsistent with the letter from the DP which indicated his problems began with the elections (in June). The Tribunal reasoned that if the applicant was assaulted because of his DP involvement in March 1997 they would have expected the DP to have referred to this as the commencement of his problems. Given the disparity in the documents, the Tribunal did not accept the medical certificate was genuine.

d) The Tribunal did not find his evidence about the demonstration and his beating convincing.

e) The Tribunal noted that in any event, in March 1997 the DP was still in power and as a result it was not plausible that the police would chase after the applicant for involvement in a DP demonstration at this time.

36. In short, the inconsistencies in the documents caused the Tribunal to form the view that the documents were concocted and contrived to further his claim for refugee status.

Arguments on behalf of the applicant

37. It was contended on behalf of the applicant that there were errors on the part of the Tribunal which amounted to jurisdictional errors. This case was heard prior to the decision of the High Court in S157/2002 v Commonwealth of Australia (2002). Nevertheless, submissions were made by counsel on behalf of the applicant and by counsel for the Minister on the basis of the possibility of some relief if jurisdictional error could be established.

38. The error contended for by the applicant was that the Tribunal failed to take into account material placed before it on behalf of the applicant. In particular, it was contended that the Tribunal did not give attention to the submission put to it on behalf of the applicant by the Asylum Seeker Resource Centre. Counsel further submitted that country information was used against the applicant and to use it in such a way constitutes an error of law. It was contended that the country information supports the applicant and that the Tribunal failed to have regard to it. The submissions of the Asylum Seeker Resource Centre were mainly directed to the country information.

39. However, it is clear that the Tribunal did have regard to the country information and to the submissions put to it. The submission was specifically described by the Tribunal at Courtbook 132. The Tribunal referred to the country information the subject of the submission. The Tribunal did not ignore the country information. It took into account Amnesty's concerns regarding Azjan Haklaj. The Tribunal however indicated it was satisfied that there are many other DP members who do not have problems and in particular, focussed their attention on whether the applicant had significant involvement before 1997 or since and whether the applicant's DP membership would cause him problems if he returned to Albania.

40. In any event, the Tribunal did not ignore the submissions made on behalf of the applicant. Although the Tribunal is required to have regard to all of the material in evidence before it, that requirement relates to material and evidence from which material facts are to be found rather than submissions of representatives as to what those findings should be (see Nagarajah v Minister for Immigration and Multicultural and Indigenous Affairs (2000) FCA 1003 per Merkel J at (10)).

41. The applicant contended that the Tribunal reached a conclusion that the documents put in evidence during the hearing were corruptly manufactured on behalf of the applicant without there being sufficient grounds for doing so. This is a challenge to factual matters upon which findings were made by the Tribunal. That does not of itself establish an error of law which amounts to jurisdictional error. In my view, it was plainly open to the Tribunal to reject the material for the reasons given. The newspaper article was found to be implausible and the Tribunal's reasoning for that is quite clear. There was internal inconsistency between the other documents as well as the degree of implausibility in the contentions of persecution because of membership of the DP when that party was in power. The Tribunal articulated the reasons why it did not accept the document and why it found it to be concocted.

42. At the hearing before me, counsel contended that it was difficult to see how the applicant could have "manufactured" these documents whilst he was in detention. I do not fully understand this submission, as it was conceded the documents were obtained by the applicant whilst he was in detention. As a matter of logic, it seems to me no less or more difficult to see how he could have obtained them if they were legitimate than, if they were not. As the Tribunal noted, the documents were obtained after the delegate had given his decision and before the Tribunal hearing.

43. Given the view that the Tribunal took of his evidence and the inconsistencies they found in it, no basis for this contention has been established. Counsel also contended at the hearing that the decision was unreasonable in the Wednesbury unreasonable sense (see Associated Provincial Houses Ltd v Wednesbury Corporation (1948) 1 KB 223).

44. To succeed on this ground, the applicant must satisfy the Court that the decision is one that when looked at objectively is so devoid of plausible justifications that no reasonable body or a person could have made the decision. I do not accept that the Tribunal's decision can be so described.

45. The applicant then contended that the Tribunal confused general elections in Albania with local elections in that country. The respondent contends and I accept, that at best that constitutes a mistake of fact. Any illogicality in the reasoning of the Tribunal or wrong findings of fact would not result in an error of law, still less an error which could be characterised as jurisdictional; see Waterford v Commonwealth (1987) 163 CLR 54 at 77; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356 per Mason J; Minister for Immigration Multicultural and Indigenous Affairs v Perera (2001) FCA 1212 at paragraph 22 - 25; WADE of 2001 v MIMIA (2002) FCAFC 214 per Full Court at 27.

46. I accept the submission that there is no evidence in any event that the Tribunal was "confused" as to the election. The applicant provided and relied upon a translation of a document which purported to be a certificate from the DP in Albania which referred to:

In parliamentary election that set (sic) place in 1997 year ...

It was open to the Tribunal to find that the parliamentary election referred to in the document was the June 1997 national election which had returned the Socialist Party to power and that the document suggested it was the June 1997 election with which the applicant had been involved "in an official capacity".

47. It was also open to the Tribunal to reason, in a different context, that the document suggested that any adverse police interest in the applicant arose when the Socialists had come to power in June 1997 and that this was inconsistent with the applicant's claims and other documentary material. It was also open to the Tribunal to come to this conclusion bearing in mind that the applicant's claim to have been persecuted in March occurred at a time when the DP was still in power.

48. It was open to the Tribunal to reject the documentary material relied upon by the applicant because of the inconsistencies, the timing of the provision, and the other findings.

49. These matters were findings of credibility by the Tribunal and findings that the Tribunal was entitled to make; Re Minister for Immigration Multicultural and Indigenous Affairs; ex parte Durairajasinghan (2000) 168 ALR 407, per McHugh J at 67. They are also findings of fact and the reviewing body must not set aside such findings even if it thinks that the probabilities of the case are against or even strongly against the finding W148/OOA v Minister for Immigration Multicultural & Indigenous Affairs (2001) 185 ALR 703 at (64). But in any event, I am satisfied that the findings of the RRT were open on the material before it.

50. The applicant further contended that the Tribunal was wrong in saying the applicant could not be a refugee because the events giving rise to the claim occurred some years ago in 1997 and the applicant was not a senior political figure. The reason, as I understand it, for the Tribunal saying the applicant was not a person entitled to a protection - was because it did not accept as plausible his assertions to be a person who had a well founded fear of persecution for a Convention reason. It did not decide his case on the basis that he was not a senior political figure and that the events occurred in 1997. Rather, it did not find the events as alleged by the applicant and which related to him, to be credible.

51. Finally, the applicant contended that the Tribunal did not take sufficient account of the treatment of the applicant by the police. The Tribunal considered his allegations of mistreatment but disbelieved that claim and gave reasons for so finding. The applicant's contention in this respect is really nothing more than a challenge to the merits of that finding.

52. In this case I am not satisfied that there are any jurisdictional errors and as no argument was put in relation to the case of R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 616 which considers the exceptions to the privitive clause in s.474 of the Act, the application must be dismissed.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Bryant CFM

Associate: Peter Smith

Date: 22 July 2003
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