AZABC v Minister for Immigration and Citizenship [2011] FCA 1179 (20 October 2011)

Last Updated: 26 October 2011

FEDERAL COURT OF AUSTRALIA

AZABC v Minister for Immigration and Citizenship [2011] FCA 1179

Citation:		AZABC v Minister for Immigration and Citizenship [2011] FCA 1179
Appeal from:		AZABC v Minister for Immigration & Anor [2011] FMCA 34
Parties:		AZABC v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		SAD 27 of 2011
Judge:		MANSFIELD J
Date of judgment:		20 October 2011
Date of hearing:	30 August 2011
Place:	Adelaide
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	27
Counsel for the Appellant:	P Charman
Solicitor for the Appellant:	McDonald Steed McGrath
Counsel for the Respondents:	S McDonald
Solicitor for the Respondents:	Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	SAD 27 of 2011

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	AZABC Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	MANSFIELD J
DATE OF ORDER:	20 OCTOBER 2011
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay to the first respondent costs of the appeal.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	SAD 27 of 2011

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	AZABC Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	MANSFIELD J
DATE:	20 OCTOBER 2011
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

INTRODUCTION

1. This appeal is from a decision of the Federal Magistrates Court given on 28 January 2011: AZABC v Minister for Immigration and Citizenship [2011] FMCA 34.
2. The Federal Magistrate dismissed an application to set aside a decision of the Refugee Review Tribunal made on 12 August 2010. The Tribunal had affirmed a decision of a delegate of the Minister not to grant to the appellant a Protection (Class XA) visa under the Migration Act 1958 (Cth) (the Act).
3. For the reasons which appear below, the appeal is dismissed.

THE TRIBUNAL DECISION

4. The appellant is a citizen of Albania. He arrived in Australia on 8 December 2009 on a Class TR Subclass 676 visitor visa, and applied for a Protection visa under the Act on 6 January 2010.
5. The appellant’s claim to be entitled to a Protection visa was quite straightforward. He is now 33 years old. He claims to have converted from Islam to the Orthodox religion whilst in Albania, and as a result asserts to have a well-founded fear of being persecuted in Albania by reason of his present religion. He converted to the Orthodox religion whilst he was living and working in Greece between 2003 and 2004. In late 2005, after he had returned to Albania, he married on 3 October 2005. He declined to take the blessings of the Imam of the Mosque, because of his new religion, and said that he wanted the wedding held at an Orthodox Church. He was beaten by some family members, who threatened to kill him. He left Albania after the beating, during which (he said) he was treated at the outpatient section of a local hospital for stitching of two injuries to his face. He then returned to Greece, where he had been living for some time and remained there until December 2007 when he was removed from Greece because he did not have a working visa. He returned to Albania and lived with his wife in Tirana, and worked “in secret” without any contact from his family until he had saved sufficient funds to come to Australia. His wife still lives in Albania. As noted, he then remained in Albania until his arrival in Australia in December 2009.
6. He claims that his family hold a high and powerful position in Albania, and could find him if he were to return to Albania. He then fears that he could be further assaulted by them, and severely so, because of his change of religion.
7. The Tribunal’s reasons are contained in [38]-[41] of its reasons. They are in the following terms:
   38. The Tribunal has some doubts about the applicant’s conversion to Orthodox given he has not yet been baptised in the church, despite his claim to have decided back in 2003 to become Orthodox. The Tribunal accepts the letters from the priests in Albania and in South Australia as evidence the applicant has some interest in the Orthodox church. The Tribunal notes however the applicant claimed at hearing to be attending the St George Church in Adelaide but has provided a letter from a priest at a different church where the priest says the applicant has been attending for a few months.
       
   39. The Tribunal has difficulty accepting the applicant’s story as plausible. He claims to have been beaten by his family when he expressed a wish to have his marriage blessed in the Orthodox Church. He claims he was beaten so badly he required hospitalisation. He has provided no medical records to support this. However when he legally married his wife eight months later, he did not in fact get his marriage blessed. The Tribunal gives little weight to the evidence of the applicant’s witness that he remembers hearing the applicant’s story on television in Albania. The Tribunal finds it difficult to accept the witness would recall a person’s name from something they heard on television five years ago. The applicant has not raised before with the Department or the Tribunal that his story was reported in Albania, nor has he provided any other evidence of this. The Tribunal has considered the report from Mr Thompson which states the applicant has a number of physical and psychological symptoms of anxiety and depression, but finds these symptoms could have any number of causes and do not necessarily support his claims.
       
   40. Even if the Tribunal gives the applicant the benefit of the doubt and accepts he was beaten by his family for converting to Orthodox, the Tribunal is not satisfied the applicant faces a real chance of persecution from his family or his wife’s family if he returns to Albania. He claims to have had no contact with either family since the incident in October 2005. He claims his wife has had no contact with them either. He says the families are unaware of where he has been living and have no knowledge that he returned to Albania or currently resides in Australia. He claims the families have high positions and in a corrupt country like Albania they can find him. The Tribunal acknowledges there are problems with corruption in Albania, as referred to in the country information above. However, the evidence was that since 2005 they have not in fact found either him or his wife and there was no evidence to suggest they were looking for them or had any interest in pursuing them. The Tribunal has considered the applicant’s claim that a friend told him his family would kill him if they found him, but the Tribunal finds this vague threat to be outweighed by the evidence the family has shown no apparent interest in the applicant. The applicant’s evidence was that his wife has lived safely in Tirana since 2005 and he lived and worked there for two years from September 2007.
       
   41. Given the findings above, the Tribunal is not satisfied there is more than a remote chance the applicant will encounter serious harm from his family or his wife’s family, capable of amounting to persecution for the purposes of s.91R of the Act, in the reasonably foreseeable future should be return to Albania.
       
8. Consequently, the Tribunal said that it is not satisfied that there is more than a remote chance that the applicant would encounter serious harm from his family or his wife’s family, capable of amounting to persecution, in the reasonably foreseeable future should he return to Albania.

THE DECISION OF THE FEDERAL MAGISTRATE

9. The Federal Magistrate had to consider contentions on behalf of the appellant as follows:

(1) that the Tribunal had not rejected the appellant’s claim, but in fact appears to have given him the benefit of the doubt, that he had been beaten by his family members for converting to the Orthodox religion and, building upon that proposition,

(2) that the Tribunal had then failed to exercise its jurisdiction properly in [40] of its reasons by failing to ask the correct question as to whether there was a real chance that the appellant would suffer serious harm from his and his wife’s families without protection from the Albanian authorities if he were to return to Albania to live a “normal existence”.

10. The Federal Magistrate agreed that there was “some ambiguity” in the Tribunal’s reasons, but concluded on balance that the Tribunal at [38]-[39] of its reasons had indicated that it did not accept the appellant’s claim concerning the circumstances of his conversion to the Orthodox religion, or that he had a real fear of harm from his and his wife’s family members or that he had been assaulted by his and his wife’s family members.
11. Consequently, the Tribunal did not need to consider the second contention referred to above based upon the Tribunal’s reasoning in [40] of its reasons, and therefore in any event it had not erred in its reasons in any way which affected the outcome of its decision.

CONTENTIONS ON APPEAL

12. On this appeal, the appellant contends that the Federal Magistrate wrongly determined the meaning of the Tribunal’s reasons and findings in [38] and [39] of its reasons, and so should have considered the second of those contentions arising from the Tribunal’s reasons at [40], referred to above at [9] of these reasons.
13. The appellant contends that the Federal Magistrate erred in concluding that the Tribunal had determined, adversely to the appellant, that he feared harm in Albania from his family and his wife’s family, by reason of his conversion to the Orthodox religion. Consequently, it was contended, the appellant claimed that the Tribunal had committed jurisdictional error by failing to properly consider whether the appellant’s fear of persecution was well-founded, or whether the appellant faced a real chance of persecution from his family or his wife’s family if he returns to Albania. Those questions were not addressed by the Federal Magistrate because, as noted above, he decided that the appellant had not established to the satisfaction of the Tribunal that in fact the appellant had suffered a beating from his family when it learned of his conversion to the Orthodox church.

CONSIDERATION

14. It is necessary for the appellant to make out both of those steps in his contention for the present appeal to succeed.
15. Assuming he were to succeed on both of those matters, it would then be necessary to remit the matter to the Tribunal for further consideration according to law. In that event, and assuming that the Tribunal accepted the appellant’s story as to what had happened to him, and that by reason of that story he faced a real chance of further violence from his family or his wife’s family if he returns to Albania, it would then also be necessary for the Tribunal to determine whether he could relocate within Albania to a place where he would not be exposed to that risk of violence, and secondly it would also be necessary for the Tribunal to be satisfied that the legal system in Albania is such that the private violence threatened by the family would not be the subject of an appropriate law enforcement and legal system to prevent or punish such conduct. Neither of those matters were addressed by the Tribunal because of the way in which it reached its decision. See generally Plaintiff M13/2011 v Minister for Immigration and Citizenship [2011] HCA 23; (2011) 277 ALR 667; SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18; Minister for Immigration and Cultural Affairs v Khawar [2002] HCA 48; (2002) 210 CLR 1; Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437.
16. In my view, the Federal Magistrate did err at [6] in concluding that the Tribunal:

... did not accept the applicant’s version of events concerning his conversion to an Orthodox Christian religion, his expressed fear of harm from his and his wife’s family members or his alleged assault by his and his wife’s family members.

The Tribunal’s reasons on those matters are set out in [38]-[39] above. The Federal Magistrate considered that those matters there discussed supported that proposition. The Federal Magistrate did not consider that the introductory words to [40], namely: “Even if the Tribunal gives the applicant the benefit of the doubt and accepts that he was beaten by his family for converting to Orthodox ...” indicated that the Tribunal had not decided critical issues against the appellant.

17. That issue involves no fine question of law. It is a matter of carefully considering the Tribunal’s reasons. In my view, the Tribunal’s reasons at [38] do not amount to the Tribunal rejecting the claimed conversion to Orthodox. The Tribunal simply said, on that issue, that it had “some doubts”. It then referred to factors which might have pointed for and against the accuracy of the claim. It made no determination of that claim.
18. Moreover, in [39], the Tribunal again did not indicate that it did not accept the appellant’s story. It said it had difficulty accepting that story. It refers to his claims and then referred to a number of matters from which it might have reached a conclusion, on the issue of fact, as to whether the claims were correct. It noted there were no medical records adduced in evidence to support the claim of having been so badly beaten as to require hospitalisation. It referred to the fact that the appellant did not in fact get his marriage blessed when he eventually married his wife. It said it gave little weight to the evidence of a witness who recalled hearing the appellant’s story on television, given the length of time which had elapsed (5 years) and that the appellant had not previously told the Tribunal that his story was reported in Albania. It referred to the psychological evidence but simply said that those symptoms “could have” any number of causes and so did not necessarily support his claims. It did not then, as it might logically have done, conclude that it did not accept the appellant’s story. In the terms of the Convention Relating to the Status of Refugees (1954), it did not say that it was not satisfied that the appellant had been beaten by his family when he expressed a wish to have his marriage blessed in the Orthodox church.
19. In my view, the introductory words of [40] in the particular circumstances do not simply introduce an alternative reason for the decision of the Tribunal. Having expressed some doubt, the Tribunal does not indicate that it makes any positive findings about the applicant’s claims either favourably or adversely to him. Given its subsequent reasoning, it need not have done so. What it has done is to express some concerns about the plausibility or acceptability of the appellant’s primary claims, but it has not then proceeded them positively to make a finding that it does not accept that version of events. The introductory words to [40] of its reasons suggest to me that it had not made that finding, but proceeded on the basis that it gave the appellant the benefit of the doubt with respect to them. It might have expressly indicated that, as an alternative, it would reject the claim in any event on the second ground but it does not say that. Moreover, the expression that it is not satisfied of the existence of a real chance of persecution, in conventional or common terms, in [40] tends to suggest that the preceding paragraphs did not specifically indicate a rejection of the primary claims to have been assaulted by his family for the reasons he attributed to that event.
20. However, in my view, the Tribunal has not fallen into jurisdictional error in concluding, as it did in [40], that the appellant does not face a real chance of persecution from his family or his wife’s family if he returns to Albania. It is important to have regard to the way in which the Tribunal expresses itself. It had regard to the extent to which the appellant and his wife had been in Albania since October 1995. Although the appellant said the families did not know his whereabouts whilst in Albania, he himself said that they have positions of influence and were able to find him if they wished to do so. That was consistent with his evidence more generally. The Tribunal found that the family had not found him, or bothered to find him or his wife, and there was nothing to indicate that they had any interest in pursuing them. One view of the evidence is that the appellant’s family and his wife’s family, although apparently outraged at his conversion, had cut ties with him and were no longer interested in him. That is the version of fact which the Tribunal chose to accept. It was entitled to make that finding of fact on the material before it.
21. The appellant’s contention however is that jurisdictional error is shown because the Tribunal identified a wrong issue in addressing the question of whether the appellant faces a real chance of persecution or violence from his family or his wife’s family if he were to return to Albania. The appellant’s evidence to the Tribunal was that, when he returned to Albania from Greece, he kept a low profile and in a sense hid from the two families. The appellant’s contention is that the Tribunal committed the same error as that identified in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473 where it was said at [53]-[54] (Appellant S395/2002):

The Tribunal’s findings on the attitude of Bangladesh society and the statements of the Appellants indicate that they were discreet about their relationship only because they feared that otherwise they would be subjected to the kinds of discrimination of which Mr Khan spoke. If the Tribunal had found that this fear had caused them to be discreet in the pasts, it would have been necessary for the Tribunal then to consider whether their fear of harm was well-founded and amounted to persecution. That would have required the Tribunal to consider what might happen to the Appellants in Bangladesh if they lived openly as a homosexual couple. Would they have suffered physical abuse, discrimination in employment, expulsion from their communities or violence or blackmail at the hands of police and others, as Mr Khan suggested were possibilities? These were the sorts of questions that the Tribunal was bound to consider if it found that the Appellants’ “discreet” behaviour in the past was the result of fear of what would happen to them if they lived openly as homosexuals. Because the Tribunal assumed that it is reasonable for a homosexual person in Bangladesh to conform to the laws of Bangladesh society, however, the Tribunal disqualified itself from properly considering the Appellants’ claims that they had a “real fear of persecution” if they were returned to Bangladesh.

It follows that the Tribunal has constructively failed to exercise its jurisdiction and its decision must be set aside. The Federal Court therefore erred in rejecting the Appellants’ claim for judicial review of the Tribunal’s decision under s 476(1)(e) of the Migration Act.

22. The contention is that the Tribunal here should have considered, but failed to consider, the appellant’s claim of what would happen to him if he returned to Albania and lived openly as a converted Orthodox Christian.
23. The Tribunal considered whether the appellant was at risk of serious harm amounting to persecution because of his religious conversion to Orthodox from Islam generally within Albania. It was not persuaded, that putting aside the fear of his family’s conduct, Muslims who converted to the Orthodox religion were persecuted in Albania by the State or more generally. The proposition, so far as it concerns the general position is simply not made out. Insofar as it concerns the appellant’s particular concerns about the threat of serious harm from his family or his wife’s family, as the outline contends, the Tribunal was obliged to consider what would happen if the appellant returned to Albania and lived in a normal way, that is not suppressing the expression of his Orthodox religion and not hiding from the family.
24. In the case of Appellant S395/2002, the two appellants were homosexual, and the Tribunal was found erroneously to have determined that they suffered no risk of persecution by reason of that status if they returned to Bangladesh provided that they were discreet about their relationship. In my view, that is not how the Tribunal approached this matter. I consider that at [40] of the Tribunal’s reasons, the Tribunal indicates that, however the appellant behaves if he returns to Albania, whether he openly professes his Orthodox religion, and whether he openly lives in any part of Albania, his family – accepting that it had on the one occasion expressed and demonstrated violence against him because of that conversion – were no longer interested in pursuing him. It was not a finding depending upon the appellant’s decision not to profess his Orthodox religion in a normal way, or to live in a discreet and hidden way without attracting attention to his presence or activities in the country. The Tribunal’s finding accepted the appellant’s contention that each of the families were in a relatively high position in the community and had had the ability to find him had they wished to do so. In that circumstance, the fact that they had not found him or his wife, and the absence of any evidence to suggest they were looking for him, confirmed the Tribunal’s conclusion that as a matter of fact the families simply had no apparent ongoing interest in him, notwithstanding his conversion to the Orthodox religion.
25. Consequently, the conclusion of the Tribunal at [41] is not indicative of jurisdictional error on the part of the Tribunal. In my view, the Tribunal has properly directed itself as to the correct question to ask and has answered that question as a matter of fact. That answer was available to the Tribunal on the material before it. The answer itself does not demonstrate jurisdictional error.
26. For those reasons, the appeal should be dismissed.
27. The appellant should pay to the first respondent costs of the appeal.
    

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated: 20 October 2011