VMOT v Minister for Immigration Multicultural and Indigenous Affairs [2005] FCA 28 (3 February 2005)

Last Updated: 3 February 2005

FEDERAL COURT OF AUSTRALIA

VMOT v Minister for Immigration Multicultural and Indigenous Affairs [2005] FCA 28

MIGRATION – visa – protection visa – tribunal found any threat to first applicant no longer had currency – whether jurisdictional error – whether tribunal misunderstood meaning of ‘well-founded fear of persecution’ – whether denial of procedural fairness in tribunal relying on country information not communicated to applicants – whether first applicant said all he could in relation to matters raised by country information


Migration Act 1958 (Cth) ss 447, 474(2), 477(1), 36(1), 36(2)(a), 36(2)(b), 5(1)
Judiciary Act 1903 (Cth) s 39B
Federal Court Rules O 54B r 3, O 80


Convention relating to the Status of Refugees done at Geneva on 28 July 1951, as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967


Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 cited
Re: Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 (2000) 204 CLR 82 cited










VMOT, VMOU AND VMOV v MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS
V 87 of 2003




GRAY J
3 FEBRUARY 2005
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 87 of 2003

BETWEEN:	VMOT FIRST APPLICANT VMOU SECOND APPLICANT VMOV THIRD APPLICANT
AND:	MINISTER FOR IMMIGRATION MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	GRAY J
DATE OF ORDER:	3 FEBRUARY 2005
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicants pay the respondent’s costs of the proceeding.









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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 87 of 2003

BETWEEN:	VMOT FIRST APPLICANT VMOU SECOND APPLICANT VMOV THIRD APPLICANT
AND:	MINISTER FOR IMMIGRATION MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	GRAY J
DATE:	3 FEBRUARY 2005
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

The nature and history of the proceeding

1 The principal question in this proceeding is whether the Refugee Review Tribunal (‘the Tribunal’) denied the first applicant procedural fairness when it relied on information, which it did not communicate to the first applicant, in refusing his application for a protection visa. The information was of a kind referred to in the Tribunal as ‘country information’, ie information from government sources, relating to the situation in the first applicant’s country of origin. The applicants also attempted to make a case of jurisdictional error on the part of the Tribunal on other grounds related to the manner in which the Tribunal dealt with the material on which the first applicant relied.

2 The applicants are husband, wife and their son. They are citizens of Albania. They arrived in Australia on 19 June 1997. On 15 December 1999, they applied for protection visas, pursuant to the Migration Act 1958 (Cth) (‘the Migration Act’). On 28 March 2000, a delegate of the Minister for Immigration and Multicultural Affairs (now the Minister for Immigration and Multicultural and Indigenous Affairs) (in both cases, ‘the Minister’) refused to grant protection visas. The applicants applied to the Tribunal for review of that decision. The Tribunal conducted a hearing on 5 September 2002. Its written decision, dated 9 September 2002 and handed down on 27 September 2002 with written reasons for decision, was to affirm the decision of the Minister’s delegate not to grant protection visas.

3 On 21 February 2003, the applicants filed an application in the Court, seeking relief pursuant to s 39B of the Judiciary Act 1903 (Cth). On 2 April 2003, the Minister filed a notice of objection to competency, relying on the ground that the application was made to the Court outside the time limit fixed by s 447 of the Migration Act. That notice was itself out of time, by virtue of O 54B r 3 of the Federal Court Rules. In any event, if the Tribunal’s decision were found to be tainted by jurisdictional error, that decision would not be ‘a decision...made...under’ the Migration Act, within the definition of ‘privative clause decision’ in s 474(2) of the Migration Act. The time limit fixed by s 477(1) for applications to this Court is imposed in respect of a privative clause decision. Accordingly, the time limit would not apply. No separate determination of the notice of competency was necessary.

4 By s 36(1) of the Migration Act, there is a class of visas to be known as protection visas. By s 36(2)(a), a criterion for a protection visa is that the person applying for it be a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. By s 36(2)(b), an alternative criterion is that the person applying for the visa be a non-citizen in Australia who is the spouse or a dependent of a non-citizen who satisfies the first criterion and holds a protection visa. The terms ‘Refugees Convention’ and ‘Refugees Protocol’ are defined in s 5(1) of the Migration Act to mean the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Protocol relating to the Status of Refugees done at New York on 31 January 1967 respectively. It is convenient to call these two instruments, taken together, the ‘Convention’. For present purposes, it is sufficient to note that, pursuant to the Convention, Australia has protection obligations to a person who:

‘owing to 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’.

5 In the present case, only the first applicant claimed that he had a well-founded fear of being persecuted for a Convention reason or reasons, if he should return to Albania. The claims of the second and third applicants were based on being his spouse and a dependent respectively.

The first applicant’s claims

6 The first applicant claimed that he had left Albania in February 1997, fearing that the communists or socialists would regain power after a pyramid scandal. If they did, he feared that he would be targeted by them because of his pro-democratic and anti-socialist tendencies. He therefore claimed to have a well-founded fear of persecution, if he should return to Albania, on the ground of his political opinion. He claimed that he was an active member of the pro-democratic movement from early 1990 and a registered member of the Democratic Party from April or May 1991. Under the direction of leaders of the Democratic Party, he tried to persuade people in his town that communism was dead and they should be pro-democratic.

7 The first applicant also claimed to have come from a ‘Kulak’ family, because his father’s brothers had left Albania to escape the communist regime. He claimed that his family were targeted. He therefore claimed also to have a well-founded fear of persecution for the reason of his membership of a particular social group.

8 The first applicant claimed to have received a death threat from a well-known member of the Socialist Party, whom he named, in December 1991. This person had been the head communist in his region. He told the first applicant that he had received directions from above to kill the first applicant. The first applicant then hid at his uncle’s home until February 1992, when he left for Greece. He returned to Albania in February 1996, believing that the democrats were secure and in control, and that the former communists were weakened. After the pyramid scandal, when he became convinced that the communists were regaining control, he obtained a visa to study in Australia and left Albania. He claimed that he was certain that he would be killed if he returned to Albania, because the Albanian leadership ‘is in the hands of the communist/socialists’, and that people in the middle and lower levels of government and government instrumentalities continued to do the bidding of the communists.

9 The first applicant produced evidence of his participation in the destruction of a statue of a former communist leader in 1991.

The Tribunal’s reasons

10 The Tribunal accepted a number of the first applicant’s claims. It accepted that his family were persecuted during the communist era because they were wealthy and classified as ‘kulaks’, and that his uncle was killed and other family members were discriminated against. It then found that it is now over ten years since Albania was governed by communists. It described the present system, including the multi-party parliament, a prime minister and a president elected by parliament, and the constitutional and democratic structure in place. The Tribunal said that it was ‘satisfied that Albania is no longer under the control of communists, and that the possibility of a return to communism in the foreseeable future is very remote.’

11 The Tribunal found that the first applicant expressed his political opinion in 1991 by assisting in the destruction of the statue, and that he was a member of an anti-communist association. It accepted that he joined the Democratic Party in January 1991 and undertook political activities in support of the party, including speaking in public of his support for democracy and opposition to communism. The Tribunal accepted that he was threatened in November 1991 because of his role in destroying the statue and his support for the Democratic Party, and that he left Albania because he was frightened that he would be harmed by the political opponent who had threatened him.

12 The Tribunal then said:

‘However, these events happened over 10 years ago, and the Tribunal does not accept that if the applicant were to return to Albania now or in the reasonably foreseeable future that there is a real chance he would be persecuted for reason of his political opinion by former Communists or by members of the Socialist Party which is currently in power in Albania.’

13 The Tribunal did not accept that the person who threatened the first applicant in 1991 had an ongoing interest in harming him because of his political opinions. In making this finding, it relied on the fact that the first applicant had returned to his home town in February 1996 and remained there until June 1997, and had not been harmed during that period. Although he claimed that he had been threatened, he was vague about who had threatened him and the Tribunal was not satisfied that he was threatened at that time. In any event, as the Tribunal found, the first applicant did not identify the person who had threatened him in 1991 as a person who had threatened him again. The Tribunal would have expected him to do so if that person had been responsible for threatening him again. Although the Democratic Party was in power at the time, in view of what the Tribunal described as the ‘anarchic situation which prevailed during the first half of 1997’, the Tribunal took the view that the original threatener could have harmed the first applicant if he had wished to. If this did not occur in the 1996-1997 period, there was no reason to believe that the original threatener would be interested in harming the first applicant now.

14 The Tribunal found that the first applicant was a member of the Democratic Party from 1991 until 1998, but that he never occupied a leadership position in the party. According to the Tribunal’s reasons, it discussed with the first applicant at the hearing country information indicating that ordinary members of the Democratic Party are not at risk of being harmed for reason of their political opinions in the current situation in Albania. In its reasons, the Tribunal expressly relied on additional information to that discussed at the hearing. This information was supplied by the Department of Foreign Affairs and Trade (‘DFAT’) and the British Home Office. The Tribunal noted the first applicant’s claim that low-level members of the Democratic Party were more at risk than high profile activists, but found that this contention was not supported by the independent information ‘discussed above’. As the Tribunal said:

‘Based on the country information available to it, the Tribunal finds there is not a real chance that if the applicant were to return to Albania he would be harmed for reason of his past political activities or for any support he may provide to the Democratic Party in the reasonably foreseeable future.’

15 The Tribunal summed up its reasoning as follows:

‘Taking into account the above, the Tribunal finds that the applicant was persecuted by the Communist regime in the past because of his family background, and that he was threatened for reason of his political opinion in 1991. However, the Tribunal finds that if the applicant were to return to Albania now or in the reasonably foreseeable future, there is not a real chance that he would be harmed for reason of his membership of a particular social group or his political opinion or for any other Convention reason. The Tribunal finds that the applicant’s fears are not well-founded.’

16 On this basis, the Tribunal was not satisfied that the first applicant was a person to whom Australia had protection obligations under the Convention. He did not therefore satisfy the criterion for a protection visa. The second and third applicants did not satisfy the criterion applicable to them, because their applications depended on the successful outcome of the first applicant’s application.

The applicants’ case

17 The applicants’ original application to the Court was not lodged by any solicitor or migration agent. In substance, it alleged error on the part of the Tribunal in misinterpreting or misunderstanding the criterion for the grant of a protection visa, by misapprehending the test required by the Convention as to whether the first applicant had a well-founded fear of persecution should he return to Albania. Pursuant to the scheme operated by the Court under O 80 of the Federal Court Rules, the applicants were referred to counsel, who appeared for them without fee. On 3 December 2003, the applicants filed contentions of fact and law, expressly broadening the grounds of the application. In particular, the contentions raised the issue of procedural fairness in relation to reliance by the Tribunal on ‘country information’ to make a crucial finding.

18 The proceeding was listed for hearing originally on 24 June 2004. Counsel for the applicants attempted to rely on the contentions filed. Counsel for the Minister objected. It appeared that the question of denial of procedural fairness might well require an examination of what had happened at the Tribunal hearing. There was no transcript of the Tribunal hearing before the Court. I therefore adjourned the hearing until 2 August 2004. I gave directions for the applicants to file an amended application, adding as a ground for relief a ground encapsulating the procedural fairness contentions, and for the applicants to file any affidavit on which they may seek to rely. I also directed the respondent to file and serve, as an addition to the court book, a transcript of the Tribunal hearing. I ordered the applicants to pay the respondent’s costs of the adjournment.

19 On 30 July 2004, the applicants filed an amended application raising denial of procedural fairness as an explicit ground. They also filed an affidavit of the first applicant, sworn on that day, the substance of which is contained in the following four paragraphs:

‘5. I say that at the hearing of my application before the Refugee Review
Tribunal on 5 September 2002, the Tribunal did not put to me the
country information, referred to in paragraph 4 above, and afford me
an opportunity to comment on them [sic]. Now produced and shown to me is a copy of the Transcript of hearing conducted by the Tribunal on 5 September 2002 contained in the Supplementary Court Book in these proceedings.

6. I say that had the Tribunal informed me that it relied upon such
country information, I would have pointed out to the Tribunal that the
Socialist Party, the party in power in Albania are [sic] in effect the
erstwhile Communists who had in 1991 changed its name from Party
of Labour in Albania (PLA) to the Socialist Party of Albania (SP). I
say that this is borne out in the chronology of major political
developments in Albania prepared by the British Government and
referred to by the Tribunal in its decision.

7. I say that I left Albania in February 1992 and apart from a short
period between February 1996 and June 1997 I have not lived in
Albania. I have no family left in Albania. My parents and siblings are
scattered around the world in USA, Greece and Australia. I have not
been able to obtain any on ground information about the political and
general situation in Albania particularly in or around September 2002
(at the time of the hearing before the Tribunal).

8. I say that it is common knowledge that Albania is a country of chronic
lawlessness, crime, violence and political turmoil. I say that the
country information relied upon by the Tribunal is only theoretical in
its reference to the politics of the [sic] Albania. Although it refers to
political killings of a high profile nature, which because of its nature
may be reported, such information in précis form cannot be expected
to and does not accurately depict the dangers posed to lowlevel [sic]
political activists.’

20 The respondent also filed, by way of supplementary court book, a transcript of the Tribunal hearing. The transcript discloses that the hearing lasted an hour and 10 minutes and involved an interpreter. Only the first applicant gave evidence.

The Tribunal’s understanding of the Convention

21 The applicants’ contention that the Tribunal misunderstood the meaning of a well-founded fear of persecution in the Convention was put in several ways. They may be summarised as follows:

• It was an erroneous conclusion that, having been threatened with death in 1991, the first applicant had no real chance of being persecuted by former communists, or by members of the Socialist Party, currently in power in Albania, if he should return.

• The Tribunal made inconsistent findings, when it found that a named person had threatened the first applicant with death in 1991, but later found that the first applicant did not identify that person as a person who had threatened him.

• The want of logic, and inconsistency with the evidence, reflected a lack of application of mind to the questions before the Tribunal, and indicated that it had failed to give proper, genuine and realistic consideration to the merits of the application.

• Having found that the first applicant was persecuted by the communist regime in the past, because of his family background, and that he was threatened for reasons of his political opinion in 1991, the Tribunal should have found that he was at risk of persecution for a Convention reason, and that a fear of persecution may be well-founded even though the evidence does not show that it is more likely than not to happen.

• The Tribunal did not consider what the situation might be if its findings of fact about the unlikelihood of the return of the communists should prove to be incorrect.

• The material before the Tribunal showed that the Socialist Party, which was formerly known as the PLA, and was the former communist party, was only out of power between 1992 and 1997. The Tribunal made a material error of fact, which indicated that it had misunderstood the facts. It thereby failed to exercise its jurisdiction.

22 The Tribunal set out early in its reasons for decision what seems to be a standard form reference to relevant legislation, the Convention, and authorities, so as to demonstrate its understanding of the task before it. The use of such a standard form passage in the Tribunal’s reasons would not necessarily be taken to show that the Tribunal had a real understanding of its task, if its actual reasoning demonstrated otherwise. In the present case, however, the actual reasoning does not demonstrate that the Tribunal failed to understand what it was obliged to do.

23 It is plain that a number of the arguments raised by the applicants under this head are attempts to seek further merits review from the Court, which is impermissible. There was no necessary error in finding that the first applicant was the subject of a death threat in 1991, because of his political activities, and that he then left Albania because he was frightened that he would be harmed, but also in finding that the threat no longer had currency after the passage of ten years, which had involved major political changes. Nor was there want of logic, or inconsistency, in the Tribunal’s findings that, on the one hand a named person had threatened the first applicant in 1991, but that the first applicant did not identify that person as threatening him in 1996 or 1997. Again, findings favourable to the first applicant in relation to the situation in 1991 did not require the Tribunal to find that his fear of persecution remained well-founded a decade later, when changes had occurred.

24 The real contention is that the Tribunal ought to have made a finding that the 1991 death threat still had currency, because the Socialist Party, which had come to power in 1997, was in truth controlled by former communists, and that those former communists would still have had the motive, and the power, to carry out the threat. These issues were matters for the Tribunal. In the course of its reasons for decision, the Tribunal set out a substantial chronology of events in the history of Albania. It was clear that the Tribunal understood that, from July 1997 onwards, the Socialist Party had been in office in Albania. The Tribunal appears to have been well aware of the connection between the former communist party and the current Socialist Party. It made two express references to ‘Communists/Socialists’. On the basis of information in a Canadian government report, which the Tribunal discussed with the first applicant at its hearing, the Tribunal was entitled to find that the Socialist Party was no longer harassing political opponents and was not concerned with rank and file Democratic Party members. These were matters for the Tribunal, and the Court cannot overturn its findings.

Denial of procedural fairness

25 As I have said, the Tribunal expressly relied on ‘country information’ that it had not made known to the first applicant. He had no specific opportunity to comment on that information. The Tribunal relied on the DFAT information and the British Home Office information, in addition to the Canadian government report, which it did make known to the first applicant at the hearing, to support its finding that low-level members of the Democratic Party were unlikely to be harassed by the Albanian government.

26 Ordinarily, withholding of information on which the decision-maker relies against the interests of a party to the decision is a denial of procedural fairness. If it deprives that party of the possibility of a successful outcome, then a remedy is usually available. See Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 at 147 and Re: Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 (2000) 204 CLR 82 at [80] per Gaudron and Gummow JJ, [104] per McHugh J and [131] – [132] per Kirby J. In the present case, therefore, the question is whether an opportunity for the first applicant to respond to the DFAT and British Home Office information about the treatment of Democratic Party members in Albania might have made a difference to the outcome.

27 In his affidavit, from which I have quoted in [19], the first applicant gave an account of what he would have said to the Tribunal, if he had been given an opportunity to answer the material on which the Tribunal relied. In par 6, he said that he would have pointed out that the Socialist Party is in effect the former communists, who changed their name. In par 8, he referred to the dangers posed to low-level political activists. Otherwise, in par 7, he made clear that he had not been able to obtain more specific up-to-date information. His reference in par 8 to the fact that Albania is a country of chronic lawlessness, crime, violence and political turmoil could not have been expected to invoke any Convention reason other than political opinion, and was not specific as to any threat to him.

28 As I have already said, the Tribunal was apparently aware of the identity between the former communists and the current Socialist Party in Albania. In its reasons for decision, the Tribunal referred on two occasions to ‘Communists/Socialists’. In addition, as the transcript of the Tribunal hearing shows, the first applicant in fact made this point to the Tribunal. In the course of the hearing, the Tribunal member said:

‘I have to look at the situation in Albania now or in the reasonably foreseeable future. The thing about Albania is, it is one of those countries where there have been, you know, quite major changes. I think it’s safe to say that the sort of Communism that existed under Enver Hoxha is not going to return to Albania.’

Through the interpreter, the first applicant replied:

‘Unless this generation dies out they might say that they’re Communists - that they’re Democratic but in spirit they’re Communists.’

29 The Tribunal appeared to accept this point. Plainly, it was insufficient to persuade the Tribunal that any threat to the first applicant from the Socialist Party government, by reason of his political opinion, still existed.

30 Similarly, the first applicant actually made to the Tribunal the point about danger to low-level political activists. In the course of the hearing, the Tribunal member said to him:

‘the fact is you really don’t have a very high political profile in Albania and if you’ve done any work for the Democratic Party it was a long time ago and really at a very low level.’

Through the interpreter the first applicant replied:

‘I accept that I was on the low level. The people at a lower level get killed easier and quicker than the people on the high level. This happens everywhere where the smaller people get killed first.’

Again, the Tribunal was not persuaded by this evidence.

31 An examination of the transcript of the Tribunal hearing makes it clear that the issue of present-day danger to Democratic Party activists was canvassed at length at the Tribunal hearing. The first applicant was given plenty of opportunity to make whatever points he wished to make about that issue. As his affidavit shows, when compared with the transcript of the Tribunal hearing, the first applicant said all that he could have said about that issue.

32 It is therefore clear that the Tribunal’s reliance on additional information about that issue did not operate to deprive the first applicant of the opportunity of a successful outcome. He said what he could say on the subject. He failed to persuade the Tribunal that his case ought to be accepted.

Conclusion

33 The applicants have therefore failed to establish jurisdictional error on the part of the Tribunal. The application must be dismissed. No reason was advanced, and none appears, why the usual rule, that costs follow the event, should not be applied. The applicants will therefore be ordered to pay the Minister’s costs of the application.

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray.

Associate:

Dated: 3 February 2005

Counsel for the applicants:	K Kappadath (Pro Bono)
Counsel for the respondent:	Dr S Donaghue
Solicitor for the respondent:	Clayton Utz
Date of Hearing:	24 June 2004, 2 August 2004
Date of Judgment:	3 February 2005