FEDERAL COURT OF AUSTRALIA

Kola v Minister for Immigration & Multicultural Affairs  [2001] FCA 630

MIGRATION - refugees - application for a protection visa - applicants nationals of former Federal Republic of Yugoslavia - applicants ethnic Albanians - applicants previously accorded refugee status in Albania - refoulement to a third country - whether the expression “right to enter and reside” in a third country in s 36(3) of the Migration Act 1958 (Cth) means a legally enforceable right - whether s 36(2) continues to operate as previously interpreted notwithstanding the introduction of s 36(3) - (5) of the Act so that the availability of effective protection in a third country means that Australia has no protection obligations to the visa applicant under s 36(2).

MIGRATION - whether failure to comply with s 420(2)(b) gives rise to the ground of review available under s 476(1)(b).

MIGRATION - whether general country information is information specific to the applicants within s 424A(3)(a).

MIGRATION - whether the decision of the Refugee Review Tribunal was induced or affected by actual bias in breach of s 476(1)(f) of the Migration Act 1958 ( Cth).

Migration Act 1958 (Cth)

Border Protection Legislation Amendment Act 1999 (Cth)

Minister for Immigration and Multicultural Affairs v Thiyagarajah (1998) 80 FCR 543 Applied

Rajendran v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 562 Applied

Minister for Immigration and Multicultural Affairs v Gnanapiragasam (1998) 88 FCR 1 Referred to

Al-Rahal v Minister for Immigration and Multicultural Affairs [2000] FCA 1005 Referred to

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 Applied

Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 Referred to

Naing v Minister for Immigration and Multicultural Affairs [2000] FCA 344 Referred to

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 Applied

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 Applied

Applicant C v Minister for Immigration and Multicultural Affairs [2001] FCA 229 Applied

S115/OOA v Minister for Immigration and Multicultural Affairs [2001] FCA 540 Applied

Al-Zafiry v Minister for Immigration and Multicultural Affairs [1999] FCA 443 Applied

Al-Zafiry v Minister for Immigration and Multicultural Affairs [1999] FCA 1472;  58 ALD 663 Referred to

Minister for Immigration and Multicultural Affairs v Kabail (1999) 93 FCR 498 Referred to

Minister for Immigration and Multicultural Affairs v Al-Sallal (1999) 94 FCR 549 Referred to

Sun Zhan Qui v Minister for Immigration and Multicultural Affairs (1997) 81 FCR 71 Applied

ERGI ANTON KOLA AND VALBONA KOLA v THE MINISTER FOR

IMMIGRATION AND MULTICULTURAL AFFAIRS

MANSFIELD J

ADELAIDE

30 MAY 2001

THE COURT ORDERS THAT:

1.         The application be dismissed.

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

REASONS FOR JUDGMENT

BACKGROUND

1                     This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”) given on 8 August 2000.  The Tribunal affirmed the decision of a delegate of the respondent made on 28 February 2000 that the applicants are not persons to whom Australia has protection obligations under the 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 (“the Convention”).  Consequently, as the criterion for the grant of a protection visa specified in s 36(2) of the Migration Act 1958 (Cth) (“the Act”) and cl 866.221 of Sch 2 of the Migration Regulations was not satisfied, the application was refused:  s 65(1) of the Act.

2                     The applicants arrived in Australia on 15 December 1999 and applied for a protection visa on 7 January 2000.  The applicants are husband and wife.  They are both citizens of the former Federal Republic of Yugoslavia.  They are both Catholics and ethnic Kosovars.  They speak Albanian.  The Tribunal accepted that both were born in Trnave, Presevo in the former Federal Republic of Yugoslavia, where they lived until they fled in March 1999.  Trnave is a village in Serbian territory and is situated approximately twelve kilometres outside the Kosovo border and eight to ten kilometres north of the Macedonian border.  Apart from the Serbian police, the population of Trnave is overwhelmingly Albanian.

the claims and the tribunal’s reasons

3                     The applicants claimed that they were forced to leave Trnave on 4 April 1999 by the Serbian police and Army.  The applicant Ergi Anton Kola (“Mr Kola”) had witnessed his brother being killed by Serbs.  The applicants first fled to Blatza in Macedonia where they remained for five days, before travelling by bus to a refugee camp situated near the capital of Albania, Tirana.  Between April and December 1999 the applicants remained housed in a refugee camp in or near Tirana.  They were free to come and go as they pleased.  They were issued with refugee cards by the Albanian authorities.  In December 1999 the applicants travelled to Australia using false travel documents obtained in Albania.

4                     The applicants claimed that they feared returning to Serbia because their village of Trnave is located on the border of Serbia and Kosovo, and they fear being killed by Serbs and otherwise of having to live in hardship and danger.  They claimed that there was ongoing fighting between Serbian forces and the Albanian military forces.  They also claimed that they could not reasonably relocate to another part of Serbia, including anywhere within the province of Kosovo.

5                     Article 1A(2) of the Convention relevantly provides that a refugee is any 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 as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”

6                     In the circumstances, the Tribunal did not find it necessary to address that definition.  It accepted that the applicants are outside their country of nationality, and that they have a subjective fear of persecution should they return to the former Federal Republic of Yugoslavia.  The Tribunal did not proceed to determine whether that fear of persecution is well-founded.  That is because the applicants had acknowledged at the hearing that they are permitted to return to Albania and live there.  The Tribunal therefore proceeded to determine whether the applicants have “effective protection” in Albania.  It concluded that the applicants :

“… 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 [the Federal Republic of Yugoslavia].”

7                     Accordingly, the Tribunal was not satisfied that the applicants are persons to whom Australia owes protection obligations.  In reaching that conclusion, the Tribunal had regard to Article 33 of the Convention, and to subs 36(3)-(5) of the Act. 

8                     Section 36(3) - (5) was inserted into the Act by the Border Protection Legislation Amendment Act 1999 (Cth) (s 3 and Sch 1 Pt 6 cl 65).  Those new subsections provide :

“(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.”

9                     After referring in particular to s 36(3) of the Act, the Tribunal said:

“If there is such a country to which the applicant can be returned, there is no obligation to consider the substantive merits of the applicant’s claims to refugee status in his or her country of nationality.”

10                  In arriving at that conclusion the Tribunal relied upon several decisions of this Court, namely Minister for Immigration and Multicultural Affairs v Thiyagarajah (1998) 80 FCR 543 (“Thiyagarajah”);  Rajendran v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 562 (“Rajendran”) and Minister for Immigration and Multicultural Affairs v Gnanapiragasam (1998) 88 FCR 1 (“Gnanapiragasam”).  It also relied upon Al-Rahal v Minister for Immigration and Multicultural Affairs [2000] FCA 1005 to enlighten its understanding of “effective protection” in a third country.

11                  The Tribunal then proceeded to determine whether the applicants had “effective protection” in Albania.  It noted that Mr Kola had agreed at the hearing before the Tribunal that the applicants are permitted to return to Albania and to live there.  It noted that the applicants had previously been provided with protection in Albania, and that Mr Kola’s parents still live in a rented house in Tirana.  It observed that there was no evidence before the Tribunal that the applicants had been persecuted whilst they had lived in Albania (between April and December 1999) or that they face a real chance of persecution whilst living in Albania.  The ability of the applicants to return to, and reside in, Albania was (the Tribunal noted) consistent with independent country information to which it referred concerning the “open door” of Albania to Kosovo ethnic Albanian refugees.  It was satisfied that the applicants would not be refouled if they returned to Albania.

12                  It found that the applicants had been recognised as refugees in Albania and that “they have the right to return to Albania as refugees”, even though the refugee cards which had been issued to them in April 1999 may have expired.  It noted the options available to them of living with Mr Kola’s parents in rented accommodation, or of obtaining their own accommodation in Tirana.  It further found that the applicants did not face a real chance of persecution for any Convention reason if they return to Albania.  It noted generally their claims that Albania itself has some corruption, with incidents of general violence and lawlessness, and that there have been incidents of rape in refugee camps.  However, it was satisfied that Kosovo Albanians are not identified and targeted as victims of criminal acts.

13                  The Tribunal concluded :

“The Tribunal is satisfied that, as a matter of practical reality and fact, … the Applicants 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 Applicant and his spouse 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.”

the grounds of review

14                  The grounds of review in the amended application for review were the following:

(1)        The Tribunal lacked jurisdiction to proceed with the hearing of the application for review on 28 June 2000 because the Tribunal failed to provide the applicants with a competent interpreter to enable them to communicate with the Tribunal, contrary to s 427(7) of the Act.  Consequently, avenues of inquiry crucial to the understanding of the applicants’ case were “obscured from the Tribunal”.  In oral submissions, counsel for the applicants abandoned this ground of review.  It is not necessary to refer further to it.

(2)        The Tribunal erred in law by failing properly to assess the applicants’ claim with respect to refoulement to Albania, by failing to explore or assess the special nature of their claims relating to their fear of returning to Albania, including the circumstances faced by the applicants as Catholics in Albania and as potential targets of violence by the KLA which organisation was active in Albania.

(3)        The Tribunal erred in law by applying the wrong legal test in assessing the question of refoulement to Albania by finding that the applicants had “effective protection” in Albania without determining whether they would face persecution in Albania for a Convention reason.

(4)        The Tribunal erred in law by applying the wrong legal test in assessing whether the applicants had a well-founded fear of persecution in Albania by failing to evaluate the applicants’ claim “of their own experiences” as relevant to their fear being well-founded.

(5)        The Tribunal erred in law in applying the wrong legal test in assessing whether the applicants had a well-founded fear of persecution in Albania by failing to approach the evidence on the basis that if there was a “real chance” that the applicants would suffer persecution for a Convention reason if they returned to Albania, as Article 33 of the Convention and s 36(3) of the Act then prohibited their return to Albania.

(6)        The Tribunal’s decision was induced or affected by fraud or actual bias because the Tribunal approached the review with a mind closed to the issues.  The Tribunal member had the view that an ethnic Albanian could safely return to Albania, and so failed properly to explore the particular circumstances faced by the applicants as Catholic Albanians and as potential targets of the KLA.

(7)        The Tribunal failed to act according to the substantial justice and merits of the case, contrary to s 420(2)(b) of the Act by failing to “properly consider or investigate” whether or not the applicants were refugees and whether Albania would provide effective protection to the applicants from persecution for a Convention reason.

(8)        The Tribunal’s decision was an improper exercise of power because the Tribunal failed to canvass the substantial issues as to whether the applicants were refugees and whether Albania would provide effective protection to the applicants from persecution for a Convention reason.

15                  In support of those grounds, the applicants sought to rely upon the following affidavits:  each applicant sworn on 24 January 2001, Father Gian Paolo Civardi sworn on 9 January 2001, Lush Kolaj sworn on 16 January 2001, Alban Bitani sworn on 24 January 2001, and their solicitor sworn on 29 January 2001.  The purpose of that material was said to be twofold.  First, it was to establish or confirm that the applicants were not properly informed by the Tribunal that an important issue (and the one upon which the application failed) was whether they could be refouled to Albania without them being at the risk of persecution in Albania for a Convention reason.  The assumption underlying that purpose is that it amounts to reviewable error on the part of the Tribunal to have failed to inform, or properly to inform, the applicants that that was an issue which they had to address.  That underlying assumption is not expressed as a ground of review, although it may fall within the complaint under s 476(1)(d) that the decision was an improper exercise of power.  Secondly, the material was to demonstrate that, if the applicants were to succeed on a ground of review, it would not be futile to remit the matter to the Tribunal for reconsideration because there is available to the applicants evidence inconsistent with that upon which the Tribunal acted in determining whether the applicants might face persecution for a Convention reason in Albania if they were to return there. 

16                  The respondent objected to each of those affidavits being received on the application for review, as the review is confined to the grounds available under s 476(1) of the Act and such material is not capable of demonstrating any reviewable error on the part of the Tribunal.  The respondent did not submit that, if reviewable error on the part of the Tribunal were made out, it would be futile to remit the matter for reconsideration by the Tribunal.  In that circumstance, I do not receive the affidavit material to the extent that it sought to fulfil the second of the identified purposes.  It is simply unnecessary to do so.  I accordingly do not receive on this application the affidavits of Father Civardi or of Messrs Kolaj and Bitani or of the applicants’ solicitor.  That material could only serve the second purpose.  In the circumstances, those affidavits would otherwise simply provide the basis for rearguing the applicants’ claim on the merits.  That is not a course open to them before the Court. 

17                  I also do not propose to admit into evidence on this application the affidavits of the applicants each sworn on 24 January 2001 for the first purpose referred to.  Proof of the fact that the applicants were not properly informed by the Tribunal that an important issue was whether they could return to Albania and receive effective protection there without risk of being returned to the former Federal Republic of Yugoslavia (assuming that matter, if established, would provide a ground of review), is one which should be effected by reference to the primary material as to what transpired before the Tribunals.  The transcript of the hearing is part of the material on this application.  The affidavits proposed to be relied upon describe the unawareness of the applicants as to the significance of that issue, and then comment about what transpired during the hearing.  Those comments are subjective and personal assessments.  They are in the nature of secondary evidence.  They cannot, for present purposes, rise above being submissions about what transpired at the hearing, as the primary evidence represented by the transcript is before the Court.  Submissions could equally make those points, and were made directed to those very issues.  The respondent did not contend that the applicants had a particular awareness of the issue concerning the prospect of them receiving effective protection in Albania if they were to return there, and for the purposes of the contentions the parties approached the application on the assumption that they did not have any such awareness.

consideration of grounds of review

18                  It is convenient to deal with grounds (2) - (5) and (7) - (8) together.  The contentions did not isolate those several grounds of review.  The principal contention is that the Tribunal wrongly regarded Art 33 of the Convention and s 36(3) of the Act as being satisfied if :

(a)        the information before it indicated that the applicants 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.

19                  The criticism was that the Tribunal assumed that the applicants would not be vulnerable to persecution for a Convention reason if they were to return to Albania although there was no information upon that issue.   In particular, it was contended, the Tribunal had no information available to it about the treatment of Catholic Kosovo Albanians in Albania, and made no inquiries of the applicants about their fears if they were to return to Albania or the basis of them, and gave the applicants no real opportunity to proffer information regarding the treatment of Kosovo ethnic Albanians in Albania.

20                  It emerged in the course of oral submissions that the applicants’ contentions were in large measure, premised upon the proposition expressed in ground (7) of the grounds of review, namely that s 420(2)(b) imposes an obligation upon the Tribunal in circumstances such as the present to properly consider and investigate the applicant’s claims, and that it had not done so.  The oral submissions identified the failure to comply with s 420(2)(b) as resulting in the Tribunal lacking jurisdiction to have made its decision, so as to invoke the ground of review available under s 476(1)(b), or as amounting to the Tribunal improperly exercising its power of review, so as to invoke the ground of review available under s 476(1)(d) of the Act.

21                  In my view, the decision of the High Court in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 forecloses that line of attack upon the Tribunal’s decision.  Strictly speaking, that case decided that s 420(2)(b) did not prescribe a procedure to be observed in connection with the making of a decision, so that failure to satisfy s 420(2)(b) gave rise to the ground of review available under s 476(1)(a) of the Act.  The contention that in making the decision the Tribunal did not accord substantial justice on the merits of the case, so as to enliven s 420(2)(b), because it was not one to which any reasonable decisionmaker could arrive could not be upheld in the face of s 476(2)(b) of the Act.  No particular reference was made in argument to s 476(1)(b) or s 476(1)(d).

22                  However, it is clear that the High Court considered that, in its statutory context, there was no direct relationship between s 420 and the grounds of review identified in s 476:  see Gleeson CJ and McHugh J at 628;  Gaudron and Kirby JJ at 633 - 635, and Gummow J at 642 - 644.  Gaudron and Kirby JJ said at 635 :

“In describing the general nature of the procedures the Tribunal is to adopt, s 420 informs the grounds of review specified in s 476 of the Act, including those excluded from the Federal Court’s consideration by s 476(2).  Thus, for example, it would be an error of law reviewable under s 476(1)(e) for the Tribunal to decline jurisdiction because of some technical error in the application for review.  Conversely, it would neither be an error of law nor a procedural irregularity for the Tribunal to reach a decision on the basis of hearsay information which would not be admissible in legal proceedings.  These examples are not exhaustive.  They suffice, however, to illustrate that s 420 has an effect, but only an indirect effect, on review proceedings.”

23                  The Tribunal had jurisdiction to entertain the application for review of the decision of the delegate of the respondent:  s 411(1) of the Act.  As has been observed elsewhere, its function in the conduct of its review is essentially an inquisitorial one.  It is not shown to have failed to have taken the procedural steps prescribed by Div 4 Part 7 of the Act.  The complaints of the applicants of an error of law largely amount to an attack upon the quality of the inquisitorial process undertaken, because (it is submitted) the Tribunal did not explicitly tell the applicants of the potential relevance of Art 33 of the Convention and s 36(3) - (5) of the Act and did not give them any adequate opportunity to present information touching upon those issues.

24                  I do not consider that those criticisms of the Tribunal’s approach are made out in this matter.  The Tribunal did tell the applicants at the commencement of the hearing on 28 June 2000 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, 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 has 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.”

25                  The Tribunal’s reasons accurately reflect that material.  It found as noted earlier, that that material and including independent country information indicated that the applicants could re-enter and remain in Albania.  It also found that any disadvantages or threats which they would suffer would not be for any Convention reason, but because of the extent of general lawlessness within Albania.  In my view, the Tribunal did indicate to the applicants the need to address whether they could return to and live safely and have effective protection in Albania.  It is not necessary, therefore to determine whether a complete failure on the part of the Tribunal to identify that matter for its determination could give rise to a ground of review under s 476(1) of the Act.

26                  The opportunity which the Tribunal gave to the applicants to address that issue was, in one sense, unrestricted.  However, as is often the case, the hearing before the Tribunal proceeded mainly by the Tribunal asking questions and the applicant or applicants providing answers.  The “agenda” was therefore set mainly by the Tribunal.  The vast majority of the Tribunal’s questions did not relate to whether the applicants could re-enter and remain in Albania, and could secure effective protection there.  There were no questions which, to my mind, could be seen as directed specifically to whether they had taken all possible steps to remain in or return to Albania, an issue enlivened by s 36(3) of the Act.  However assuming that, under the Tribunal’s review regime established by the amendments effected by the Migration Legislation Amendment Act (No 1) 1998 (Cth) effective from 15 December 1998, the Tribunal in certain circumstances to properly fulfil its function, may be obliged to make inquiries of a visa applicant or of others, in my view the Tribunal is not shown to have fallen into reviewable error in that regard in this matter.  Such an obligation has been held to exist in certain circumstances under the previous review regime:  see eg Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155.

27                  At no point was any reason identified to the Tribunal requiring it to explore whether the applicants might be mistreated in Albania because they were Catholic Albanians from Kosovo.  I do not consider that the Tribunal was obliged to investigate a matter which was not raised by the applicants.  It is correct that most of the Tribunal’s questions were directed to the situation in the former Federal Republic of Yugoslavia, and why they feared to return there.  But the Tribunal drew to the attention of the applicants that a relevant question was whether they could get effective protection in Albania, and they each had the opportunity to explain why they did not want to return there.  The Tribunal referred to their responses in its reasons.  The information about the availability of effective protection in Albania was, in large measure, elicited from independent country information.  The brevity of the discussion with the applicants on that issue may well have resulted from the content of that independent country information together with the fact that the applicants had lived in Albania, apparently without particular personal trouble, for nine months.  In the circumstances, I do not consider that the Tribunal committed any error of law by not exploring those issues further with the applicants.

28                  The applicants also invoked s 424A of the Act as supporting their claim that the opportunity given to them to address what turned out to be the critical issue was so limited as to amount to an error of law.  Section 424A relevant provides :

“(1)     Subject to subsection (3), the Tribunal must :

(a)        give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review;  and

(b)        ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review;  and

(c)        invite the applicant to comment on it.

...

(3)        This section does not apply to information:

(a)        that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member;  or

(b)        that the applicant gave for the purpose of the application;  or

(c)        that is non-disclosable information.”

29                  In this matter, the information about which the applicants complain is the independent country information concerning Albania’s treatment of refugees from the former Federal Republic of Yugoslavia.  They were not apprised of the extent of that information available to the Tribunal.  The Tribunal did not invite either of them to comment upon any specific parts of that information.  Had that information been brought to their attention, they contend that they would have responded to it with contrary information.  I am prepared to assume that that is the case.  As noted earlier, one purpose of the affidavits sought to be tendered at the hearing is to identify significant material inconsistent with the independent country information upon which the Tribunal relied.  Compare Naing v Minister for Immigration and Multicultural Affairs [2000] FCA 344 per Hill J at [32 - 33].  However, in my view, s 424A does not advance the applicants’ claim of reviewable error on the part of the Tribunal.  The obligation imposed on the Tribunal under s 424A(1) is subject to subs (3)(a), which relevant excludes from the operation of s 424A(1) information that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member.  I do not consider that the independent country information relied upon by the Tribunal is information specifically about the applicants.  The distinction drawn within s 424A(3)(a) precludes the option of treating independent country information of the nature the Tribunal relied upon as being treated specifically related to the applicants, because it clearly falls into the excluded category of information concerning a class of persons of which the applicants are members, that is Kosovo refugees (whether of Albanian ethnicity or not) who are refugees in Albania from a former Federal Republic of Yugoslavia.

30                  No other reason was put forward as to why the Tribunal lacked jurisdiction to hear and determine the review application.  In my view it had that jurisdiction.  Nor was any other reason put forward as to why the Tribunal’s decision involved an improper exercise of the power conferred upon it.  Section 476(1)(d) is, moreover, to be construed as arising only in the particular circumstances specified in s 476(3).  Counsel for the applicants identified s 476(3)(a) as the relevant subclause.  It refers to an exercise of power for a purpose other than a purpose for which the power is conferred.  However, no purpose other than the performance of its function of reviewing the decision of the delegate of the respondent was identified;  and in my view no extraneous purpose on the part of the Tribunal emerges from its reasons or the other material before me.  I am also of the view that the Tribunal did not, as alleged, simply assume that Kosovo refugees from the former Federal Republic of Yugoslavia would not be permitted in Albania for the Convention reason.  Its reasons reveal its consideration at some length of the independent country information touching on that topic, as well as its consideration of the applicants’ evidence.  To the extent that, implicitly, the contention invokes s 476(1)(g) of the Act, I do not consider that that contention is made out.

31                  Apart from the attack upon the quality of the process adopted by the Tribunal, the applicants assert explicit error of law in the Tribunal’s reasons.  No particular part of the Tribunal’s reasons was identified as containing any error of law, but it is submitted that in considering the application of Art 33 of the Convention and s 36(3) of the Act the Tribunal did not apply the “real chance” test as explained in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 and Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559.  In my judgment, nothing was identified as indicating that the Tribunal had erred in that way.  Its formulation of the test to be applied to determine if the applicants were refugees was in accordance with those authorities.  Moreover, its decision did not rest upon the finding that the applicants were not refugees from the former Federal Republic of Yugoslavia.  It rested upon the finding that Australia did not owe them protection obligations as they could secure effective protection in Albania.

32                  The final way in which counsel for the applicants contended that the Tribunal erred in law was to contend that, in finding that the applicants did have effective protection in Albania, the Tribunal had not applied the correct legal test as the expression in s 36(3) of “a right to enter and reside in” an intermediate third country required more than the capacity “as a matter of practical reality and fact” to enter and reside in Albania.

33                  Section 36(3) of the Act has recently been considered by Carr J in Applicant C v Minister for Immigration and Multicultural Affairs [2001] FCA 229 (“Applicant C”).  In that case an Iraqi national was found to have a well-founded fear of persecution for a Convention reason if he were to return to Iraq, but the Tribunal concluded that that applicant had not taken all possible steps to avail himself of what it found to be a right to enter and reside in Syria.  He had no well-founded fear of persecution for a Convention reason in Syria.  The application for judicial review succeeded on the ground available in s 476(1)(g) as explained and limited by s 476(4)(a) and (b) of the Act.  Because the Tribunal was satisfied that that applicant had a well-founded fear of persecution for a Convention reason if he were to return to Iraq, Carr J considered that the Tribunal was required by s 36(3) of the Act to affirm the decision to refuse the visa only if a particular matter had to be established (see s 476(4)(a)), namely that that applicant had a right to enter and reside in Syria, whether temporarily or permanently, and had not taken all possible steps to avail himself of that right.  His Honour found, in terms of s 476(4)(a), that there was no evidence or other material from which the Tribunal could reasonably be satisfied that that particular matter was established.  He also found, in terms of s 476(4)(b), that the Tribunal based its decision on the existence of the particular fact that that applicant had the right to re-enter Syria, and that that fact did not exist.  The Tribunal did not separately address Art 33 of the Convention.  In this matter, the applicants do not invoke the ground of review under s 476(1)(g).  The significance of that decision, for present purposes, is his Honour’s consideration of s 36(3) of the Act.

34                  The respondent in Applicant C, and in this case, submitted that s 36(3) is declaratory of the pre-existing common law test dealing with effective protection, that is in the words of von Doussa J in Thiyagarajah at 562 :

“In the context of obligations under the Refugees Convention, the expression [effective protection] means protection which will effectively ensure that there is not a breach of Art 33 if the person happens to be a refugee.”

and that s 36(3) also adds the requirement that the applicant needs to have taken all possible steps to have availed himself or herself of the right to enter and reside in that third country.

35                  Carr J in Applicant C rejected that contention.  He concluded at [30]:

“A literal construction of the word “right” in a statute must, in my view, be that it is a legally enforceable right.  The extraneous materials [the Second Reading Speech of Senator Patterson, Hansard, Senate, 25 November 1999 at 10668, when tabling the proposed amendments to s 36, and Supplementary Explanatory Memorandum to the Border Protection Legislation Amendment Bill 1999, par 2] to which I have referred above tend to support a literal construction.  So does the fact that a literal construction would advance the purposes of the Refugees Convention whereas to construe the word “right” as meaning something less than a legally enforceable right would place much greater obstacles in a refugee’s path.”

36                  His Honour at [28] described s 36(3) as imposing a new statutory test which would-be refugees have, since 16 December 1999, been obliged to satisfy.  I respectfully agree with the conclusion of Carr J and his Honour’s reasons for that conclusion.  I do not think that the expression “effective protection” used and explained in the decisions of the Court concerning Art 33 of the Convention carries the same meaning as the term “a right to enter and reside in” a third country as used in s 36(3) of the Act.

37                  However, although the Tribunal may have treated together its consideration of Art 33 of the Convention and s 36(3) of the Act, in my judgment that does not demonstrate reviewable error on its part in this particular matter.  Subsection 36(3) defines circumstances in which Australia is taken not to have protection obligations to an applicant for a protection visa, provided subs 36(4) and (5) do not apply.  Its focus is upon the visa applicant, if that person has a “right to enter and reside on” a third country, having taken all possible steps to have exercised that right.  But it does not purport to change the existing operation of s 36(2) of the Act.  It has been held in many decisions of the Court that, for the purposes of s 36(2) of the Act, Australia does not have protection obligations to an applicant for a protection visa if that person has “effective protection” in an intermediate third country.  That is because Australia would not be in breach of its obligations under Art 33 of the Convention by refouling the visa applicant to that intermediate third country.  That conclusion as to the continued operation of s 36(2) of the Act as it has previously been interpreted, notwithstanding the introduction of s 36(3) - (5) of the Act, is consistent with the recent decision of Finn J in S115/OOA v Minister for Immigration and Multicultural Affairs [2001] FCA 540.

38                  Article 33 of the Convention provides :

“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.”

39                  In Thiyagarajah, von Doussa J at 556 identified that, even if an applicant for a protection visa were a refugee as defined in the Convention, it was necessary also to consider whether Australia is under an obligation to assess the refugee status of a non-citizen who has come to Australia from a third country which has recognised the visa applicant as having the status of refugee under the Convention, and whether Australia is obliged not to deport that person to the third country if that person falls within the definition of ‘refugee’ in Article 1 of the Convention.  Those questions arose because s 36(2) of the Act identified a criterion for a protection visa that Australia has protection obligations under the Convention in respect of the visa applicant (see at 556).  The Court held that international law (to which the Court should give effect by s 36(2) of the Act) did not prevent Australia from returning an asylum seeker to a third country which has already recognised that person’s status as a refugee and so has accorded that person “effective protection”, including “a right to reside, enter and re-enter that country” (at 562).  His Honour described “effective protection” in that context as meaning protection that will effectively ensure that there is not a breach of Article 33 if the person happens to be a refugee.

40                  As noted, the obligations imposed upon a Contracting State under Article 33 are not expressed in terms equivalent to Article 1A(2), although in Thiyagarajah (at 565) it was observed that a similar test to that which arises under Article 1A(2) should be applied in determining whether a proposed return of the asylum seeker to a third country contravenes Article 33.  Subsection 36(4) seems to reflect a similar approach.  In that case, it was not inconsistent with the obligations owed by Australia to deport the visa applicant from Australia, as he had been recognised as a refugee in France.  France had accorded that applicant permanent residency and was able to provide him with effective protection.

41                  Subsequent decisions have addressed the circumstances in which, having regard to the obligations imposed by Article 33 upon a Contracting State, Australia would not be in breach of Article 33 if an applicant for a protection visa were to be returned to an intermediate third country.  Rajendran determined that Australia would not be in breach of its obligations by returning the visa applicant to New Zealand, where he was entitled to permanent residence and, in time, to citizenship.  He had been afforded “effective protection” in New Zealand.  There was no real chance of him being returned by New Zealand to Sri Lanka.  It was not necessary that he had been formally recognised as having refugee status in New Zealand.  In Gnanapiragasam (1998) 88 FCR 1, the concept of “effective protection” was further explored.  Weinberg J pointed out (at 18) that neither Thiyagarajah nor Rajendran stipulate a minimal basis for the applicability of Article 33 of the Convention that a person who has been resident in a third country before coming to Australia must be shown to have a continuing right to reside there permanently in order for the third country to be able to accord that person “effective protection”.  His Honour considered that a right to return to temporary residence to an intermediate third country provided that the third country, will consider and give effect to any claim to refugee status in accordance with the Convention rather than simply return the visa applicant to the country from which that person originally came without proper consideration of the claim to be a refugee, and with the right to leave and re-enter the third country whilst proper consideration is given to the claim to refugee status, would amount to effective protection for the purposes of Article 33 of the Convention.  To that point, the decisions on “effective protection” in relation to Art 33 of the Convention appear to be consistent with the expression “right to enter and reside” in a third country used in s 36(3) of the Act.

42                  However, in Al-Zafiry v Minister for Immigration and Multicultural Affairs [1999] FCA 443, Emmett J specifically rejected the contention that, in order for an asylum seeker to have effective protection in an intermediate third country, that person must have a legally enforceable right to enter, re-enter and reside in that third country.  His Honour considered at [26] that “effective protection” in the third country is to be determined as “a matter of practical reality and fact”.  That decision was affirmed on appeal, although it does not appear that the particular issue was reventilated on the appeal:  Al-Zafiry v Minister for Immigration and Multicultural Affairs [1999] FCA 1472;  58 ALD 663 (Heerey, Carr and Tamberlin JJ).

43                  In Minister for Immigration and Multicultural Affairs v Kabail (1999) 93 FCR 498, RD Nicholson J said at 505 - 506 :

“… If there is evidence of the attainment of refugee status in the third country being a real possibility, it would not be possible to conclude there would be a threat so that the prohibition in Art 33 would not be applicable.”

The expression used by Emmett J in Al-Zafiry appears also to have been adopted by RD Nicholson J in Al-Rahal v Minister for Immigration and Multicultural Affairs, where his Honour said that the Tribunal :

“… was required to consider whether as a matter of practical reality and fact effective protection was available in the third country. …”

The expression used by Emmett J in Al-Zafiry was also cited with approval by a Full Court (Heerey, Carr and Tamberlin JJ) in Minister for Immigration and Multicultural Affairs v Al-Sallal (1999) 94 FCR 549. 

44                  Those authorities indicate that the judgment about the existence of “effective protection” for the purposes of considering the applicability of Art 33 of the Convention is made in the light of the relevant circumstances pertaining to the particular visa applicant.  Those circumstances may include whether the intermediate third country is a party to the Convention, whether the intermediate third country has granted refugee status, whether that third country will or may grant the opportunity to apply for refugee status, and the nature and extent of the opportunity to enter and reside in that third country.

45                  In this matter, in my judgment, the Tribunal has corrected applied the test expounded by the decisions referred to above in determining whether Australia owes protection obligations to the applicants.  It determined that it did not do so, because the applicants had effective protection in Albania.  Consequently, by returning the applicants to Albania in the circumstances, Australia would not be in breach of Art 33 of the Convention.  The criterion for the grant of the visa specified in s 36(2) of the Act was not satisfied.  The Tribunal can be seen to have corrected directed itself on the law on this aspect in the following passage from its reasons [Sam-taken from green book Copy Documents p179-180] :

“While Australia generally has protection obligations to persons who are ‘refugees’ as defined by Article 1 of the Convention, some circumstances may arise where Australia does not owe protection obligations to a person who may otherwise be defined to be a refugee, but has ‘effective protection’ in a third country.  That is, Australia will not be in breach of its obligations under the Convention if it returns a refugee to a ‘safe third country’ without breaching Article 33 of the Convention. ...”

46                  It is correct that the Tribunal referred, at the same point in its reasons, to s 36(3) of the Act.  But the Tribunal did not really address the focus of that subsection, namely whether the applicants had taken all possible steps to secure residence in Albania.  In the light of its conclusion about the availability of effective protection in Albania, it did not need to do so nor to address the matters referred to in s 36(4) and (5).  As its reasons demonstrate, its findings would encompass the issues to which s 36(4) and s 36(5)(a) direct attention, but the Tribunal it expressly did not determine the matter to which s 36(5)(b) directs attention.  Nor did it separately address the expression “a right to enter and reside” in s 36(3).

47                  In my judgment, the Tribunal’s decision was founded upon Australia not owing protection obligations to the applicants as they have effective protection in Albania, and it did not err in law in its consideration of that issue.

48                  The remaining ground of review under s 476(1)(f) is that the decision was induced or affected by actual bias.  It is contended that the Tribunal had formed the pre-judgment that the applicants, as ethnic Albanians, could return to Albania and secure effective protection there, and that that pre-judgment was incapable of alteration irrespective of the evidence.  It is necessary for this ground of review to be established that it be shown that any such pre-judgment was incapable of alteration:  Sun Zhan Qui v Minister for Immigration and Multicultural Affairs (1997) 81 FCR 71 at 123 per Wilcox  and at 127 per Burchett J.

49                  The bases upon which such prejudgment is asserted to exist in this matter is said to be the lack of adequate questioning of the applicants on the issue, the reliance upon “inadequate and inappropriate” generalised information, the finding of the availability of effective protection in Albania without full inquiry and without an evidentiary foundation, the irrelevance of most of the questions asked by the Tribunal of the applicants as to that issue, and the negative manner of the Tribunal towards the applicants as demonstrated by the transcript of the hearing and by the Tribunal’s findings.

50                  I have considered each of those matters.  My perusal of the transcript of the hearing does not indicate that the Tribunal demonstrated a lack of interest in the applicants’ evidence or that it had a closed mind to their claims.  Given the nature of the independent country information, it is hardly surprising that the Tribunal prior to the hearing may have formed the preliminary view that it was likely that the applicants could return to and secure effective protection in Albania.  They had apparently resided there for nine months before coming to Australia, a fact confirmed by the Tribunal during the hearing.  The Tribunal did identify to the applicants the issue of their capacity to return to and remain safely in Albania at the commencement of the hearing, and albeit cursorily touched upon that issue in the course of the hearing.  Its failure to explore that issue more fully, including by more detailed questioning of the applicants as to the reasons why they did not wish to return to Albania, or why they had left Albania, does not in my view tend to indicate final prejudgment of the issue irrespective of the evidence.  Reasons why they had left Albania, and why they did not wish to return, emerged during the hearing.  Those reasons did not suggest that the applicants were or might be vulnerable to persecution for any Convention reason;  they related to the general state of lawlessness in Albania, at least as the applicants perceived it.  Nor does the nature of the independent country information relied on by the Tribunal tend to indicate irreversible prejudgment on its part.  That information came from a variety of apparently reliable sources and presented a generally consistent picture of how Kosovar refugees in Albania are treated.  That information, together with the limited information provided by the applicants, did provide an adequate evidentiary foundation for the Tribunal’s decision.  Its questioning of the applicants, very largely directed to their circumstances in the former home and whether they could safely return there, does not itself tend to indicate actual bias on the part of the Tribunal.  In addition, in my view, the sequence of questions or discussion during the hearing about the applicant’s prospects of being able to return to Albania and there to secure effective protection does not indicate bias on the part of the Tribunal.  It did not seek to foreclose any answer or to prevent the applicants from providing answers which, on the hypothesis of bias, the Tribunal might have found unpalatable.

51                  I have had regard to the various  matters on this score to which counsel for the applicants referred, both as separate matters and taken collectively.  I do not consider that they indicate that the Tribunal had prejudged the application for review that it had a closed mind to the applicants’ claim.  It is quite possible that the Tribunal, having considered the independent country information, did consider that there was a likelihood that the applicants could return to Albania and receive effective protection there, but that approach was not one which is shown to have been so fixed that the Tribunal was not open to reaching a different view on that matter in the light of all the evidence.  It has accurately referred to and considered the significance of the information the applicants provided, and it has not prevented them at the hearing from dealing with that issue.

conclusion

52                  For the reasons given, none of the grounds of review ventilated by the applicants have been made out.  I accordingly consider that their application should be dismissed.  I so order.

Associate:

Dated:              30 May 2001