FEDERAL COURT OF AUSTRALIA

Kuqo v Minister for Immigration and Multicultural Affairs [2001] FCA 634

IMMIGRATION – refugees – whether Tribunal placed too high an evidentiary burden on applicant instead of the “real chance” test – whether adverse findings made by Tribunal due to lack of “complete supportive evidence” – whether there was no evidence upon which the Tribunal based its decision

Migration Act 1958 (Cth) ss 36, 476(1)(e), 476(1)(g), 476(4)(b)

Migration Regulations

The Handbook on Procedures and Criteria for Determining Refugee Status (1979)

Doan v Minister for Immigration and Ethnic Affairs (1997) FCA 222 cited

Randhawa v Minister for Immigration and Ethnic affairs (1994) 52 FCR 437 referred to

Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 referred to

Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 followed

DINDAR KUQO v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NO S 75 OF 2000

O’LOUGHLIN J

ADELAIDE

31 MAY 2001

THE COURT ORDERS THAT:

1.         The matter be remitted to the Refugee Review Tribunal, differently constituted, for further consideration in accordance with these reasons.

2.         The respondent pay the applicant’s costs which costs are to be taxed in default of agreement.

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

REASONS FOR JUDGMENT

1                     The applicant, Mr Dindar Kuqo, is a bachelor who is now aged thirty-one.  He is a citizen of Albania who arrived in this country on 21 December 1996.  He came to Australia to visit relatives and to attend a wedding.  A year later, on 20 November 1997, he lodged an application under the Migration Act 1958 (Cth) (“the Act”) for a protection visa with the Department of Immigration and Multicultural Affairs.  On 30 January 1998, a delegate of the Minister for Immigration and Multicultural Affairs (“the Minister”) refused his application.  On 20 February 1998, Mr Kuqo applied to the Refugee Review Tribunal (“the Tribunal”) for a review of the delegate’s decision.  He was unsuccessful and now applies to this Court for an order of review of the Tribunal’s decision.

2                     Section 36 of the Act creates a class of visa to be known as protection visas.  Subsection 36(2) lays down a criterion for a protection visa in that the applicant must be a “non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol”.  The “Refugees Convention” means the Convention relating to the status of Refugees done at Geneva on 28 July 1951 and the “Refugees Protocol” means the Protocol relating to the status of Refugees done at New York on 31 January 1967.  References hereafter to “the Refugees Convention” will mean that Convention as amended by the Protocol.  Additional criteria for the grant of a protection visa are set out in subclass 866 of Sch 2 of the Migration Regulations, but it will not be necessary to make specific reference to them.

3                     The Refugees Convention, as amended by the Protocol defines a refugee as a person who:

“… owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

The critical matter that had to be resolved by the Tribunal in this matter was whether the applicant was a non-citizen in Australia to whom Australia had protection obligations under the Convention. 

4                     Mr Kuqo claimed that he had a well-founded fear of being persecuted for reasons of his political opinion and for his membership of a particular social group.  He advanced two complaints about the Tribunal’s reasons for its decision.  First, he alleged that the Tribunal used the wrong test:  instead of testing whether there was “the real chance” of persecution, the Tribunal allegedly set a far higher evidentiary standard against the interests of applicant.  This error (ie the failure to apply the “real chance” test), so it was argued, was sufficient to make the Tribunal’s decision a judicially reviewable decision by virtue of the provisions of par 476(1)(e) of the Act.  That paragraph is in the following terms:

“(1)     Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:

            (a) – (d)…

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

            (f) – (g)  …”

5                     Secondly, he claimed that there was no evidence or other material to justify the making of the Tribunal’s decision.  It was submitted that this absence of evidence would justify the intervention of this Court because of the provisions of par 476(1)(g) of the Act; that paragraph states that the grounds for review by the Court include the ground:

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

However, in considering the “no evidence” ground, the provisions of par 476(1)(g) must be assessed in light of the qualifications that are contained in subs 476(4).  That subsection provides as follows:

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

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

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

6                     The limitations that are imposed by par 476(4) are such that the ground will “rarely, if ever, be available to an applicant” because, in most cases, it will not be possible to identify any particular matter that is required by law to be established in order to justify a decision that an applicant is not entitled to a protection visa: Doan v Minister for Immigration and Ethnic Affairs (1997) FCA 222.

the applicant’s history

7                     Mr Kuqo claimed that he is a member of the Democratic Party in Albania; its political opponent was and is the Socialist Party.  Following the collapse of communism in the early 1990’s, the Democratic Party gained power.  However, in July 1997, at which point of time Mr Kuqo was in Australia, there was a general election in Albania.  The Democrats lost and the Socialist Party formed a government.

8                     Mr Kuqo claimed in his application for a protection visa that he was fearful of returning to Albania because of the fact that the Socialists were now in power; he believed that he would be harmed by “the government through the secret police”.  In answer to a question that asked why he thought that he would be harmed or mistreated, Mr Kuqo said in his application:

“The Socialist Party who won the recent elections are in fact the Communist Party with a new name.  The politicians are the same people who were in the parliament of the old Communist party.  During the communist regime my family was continuously persecuted as shown in these documents obtained during the Democratic Party’s rule.  As well as my father being imprisoned, my maternal grandfather was shot without trial (Qerim Gari Verteniku).

The communist party kept a biography on each person and these documents are still in their hands.  I am afraid they will persecute all people who are and have been anticommunist.”

9                     At the time when Mr Kuqo lodged his application for a protection visa, he had the benefit of legal representation.  In the appeal book, there is a copy of a letter dated 24 November 1997 from Jane McGrath and Associates, lawyers and migration agents, to the Department of Immigration and Multicultural Affairs.  One of the papers that accompanied Ms McGrath’s letter was a four-page type written statement that set out, in substantial detail, the personal circumstances and history of Mr Kuqo and his family.  The following summary represents a condensation of the relevant matters that were advanced on Mr Kuqo’s behalf:

·                    he is fearful of persecution by reason of his political opinion and his membership of the Democratic Party should he return to Albania;

·                    he will be targeted by the Communists on the basis of his membership of the Democratic Party and his known political opinions;

·                    Mr Kuqo’s father, Sulejman Kuqo, fought the Communists in the civil war in Albania in the late 1940’s; he was sentenced to imprisonment on some unspecified date and was not released until 8 October 1965;

·                    following his release from custody, Mr Kuqo senior was not actively involved in politics until the fall of communism when he became an active member of an anti-communist party that was called or known as the Balli Kombetar.  He organised meetings and his name appeared in various publications that were prepared by his party;

·                    Mr Kuqo joined the Democratic Party in 1992; however, the Democratic Party that Mr Kuqo joined was said to be “different to the Democratic Party joined by his father”.

·                    Mr Kuqo’s maternal grandfather was executed without trial by the communists following the conclusion of the civil war; he had been a branch president of the Democratic Party;

·                    Mr Kuqo’s original family name had been “Soulio” but that name “was changed by the communists in 1946”;

·                    one of Mr Kuqo’s uncles, whose surname was Soulio, had also fought against the Communists in the civil war.  Following the war, he had been sentenced to death, but had escaped and entered Australia as a refugee in 1950;

·                    three other men, each with the surname “Kuqo”, had been sentenced to terms of imprisonment following upon the conclusion of the civil war; their relationship to the applicant was not stated;

·                    a relative of Mr Kuqo was involved in an altercation about politics with a Communist Party sympathiser.  The relative was assaulted and his assailant was gaoled.  It was claimed on Mr Kuqo’s behalf that the assailant’s family now “has a grudge against the Kuqo family which is based on their political antipathy”;

10                  Mr Kuqo said that after the fall of communism, his father, because he was a person who had been politically persecuted, was supplied with a house by the authorities in the Albanian capital, Tirana; the family moved to this house from their village in 1992.  The status of a “politically persecuted person” was also extended to each member of the father’s family including the applicant.  During the following period until he left for Australia in late 1996, the applicant acknowledged that he had not had any trouble from the communists.  However, in that same period, his father had been standing in front of the Balli Kambetar office when some unidentified person threw a bomb – allegedly at his father.  Fortunately, his father survived the incident.  Mr Kuqo also related another incident that occurred in 1999, some two years or more after his arrival in Australia.  He said that his cousin, who was the Secretary of the Democratic Party, had been at his home when two masked men burst into the house.  Shots were fired and although the cousin was not wounded, his young son had been shot in the hand.  Mr Kuqo said that his cousin was now living in Alaska.

11                  The Tribunal recorded in its reasons that Mr Kuqo, left Albania as a young adult and worked illegally in Greece, only to return to Albania when he heard that the Democratic Party was in the course of being formed.  The Tribunal found that Mr Kuqo worked with the head of the Democratic Party in his area, handing out leaflets in the town of Korca.  Mr Kuqo said that he also distributed documents and leaflets on another occasion about the time of an election; on that occasion he had also acted as a driver for the Democratic Party.  From 1992 he served in the Albanian army for about eighteen months, returning to Greece in 1993 where he worked for about seven or eight months.  He went back to Greece once more in 1995 and stayed there until he returned to Albania for a short while before coming to Australia.

12                  Additional papers that were before the Tribunal included a document entitled “Mature Age Certificate” in the name of Dindar Sulejman Kuqo.  It would seem that “Sulejman” is Mr Kuqo’s second name Christian name, for the certificate refers to his date of birth as 13 February 1970 and that coincides with Mr Kuqo’s date of birth as shown in his application for a protection visa.  The next document also related to Dindar Sulejman Kuqo and it purported to give him “the right of the Status of ex‑politically persecuted person”.  After adding a reference to the apparent source of power, the document then contained the endorsement “His father Sulejman Kuqo – a political prisoner”.  The certificate is said to be dated 15 October 1997 by which time the Socialists were in power and Mr Kuqo was in Australia.  It seems unlikely that the Socialists would be issuing such a certificate if, as Mr Kuqo would have it, they or their predecessors in power were the ones who were responsible for the “political persecution”.

13                  Mr Kuqo’s application for a protection visa was supported by his cousin, Mr Rauf Soulio.  Mr Soulio, who was born in Australia in 1957, is the son of a brother of Mr Kuqo’s father.  The evidence was that Mr Soulio’s father was the man who fled Albania in 1950 to avoid execution shortly after the Communists took power.  Mr Soulio studied law at the University of Adelaide.  He was admitted to practice in 1981 and has practised as a barrister at the independent Bar since 1988.  In addition to involving himself heavily in Australian-Albanian affairs, Mr Soulio, following upon the collapse of the communist regime, has twice visited Albania in 1992 and 1993 where he addressed parliamentary committees on the introduction of legislation relating to such issues as road safety, gun control and the establishment of a coroner’s office.  His second visit was as a result of a request to assist the Insurance Institute of Albania, a statutory authority, in drafting legislation to cover various fields of insurance.

14                  Mr Soulio supplied a statutory declaration to the Tribunal.  It contained a resume of his personal and professional particulars (which I have briefly summarised) and it also contained information about conditions in Albania and how those conditions affected the applicant and the applicant’s family.  The applicant also relied on the report of Mr Eric Lloga dated 23 May 2000.  Mr Lloga, who resides in Australia, was advanced as an expert on Albanian culture and politics.  Mr Lloga emphasised that in Albanian society people are identified by their family membership and, by extension, their memberships of political, social and other groups.  He said:

“There is almost universal agreement among scholars and observers of Albanian society that as a consequence of the extreme social situation (characterised by social, familial, regional and political divisions and enmities inherited from the past) and the struggle for basic survival in the post-communist era, have left (sic) ordinary people vulnerable to attack and violence and the Albanian state in an almost paralytic state.”

Mr Lloga also lent support to the commonly held view that Albania, sadly, has a significant history of communal violence and lawlessness with political overtones.  He said:

“To make the situation worse, there are unconfirmed reports that there have been intermittent violent attacks on supporters of the democratic party and other anti-communist and anti-socialist parties by former and current supporters of the communist and socialist parties.”

15                  It is well to remember the difficulties that confront any applicant for refugee status.  Mr Kuqo was, perhaps, luckier than some because he had members of his family already in Australia to lend him support and arrange for him to have legal assistance.  Nevertheless, an applicant for refugee status is a stranger in a strange land, and Mr Kuqo was unable to speak the language fluently and lacked familiarity with our legal system.  Beaumont J commented on this problem when discussing proof of persecution.  He said in Randhawa v Minister for Immigration and Ethnic affairs (1994) 52 FCR 437 at 451:

“Proof of persecution in the context of an application for refugee status is a matter of some complexity.  As A Grahl-Madsen has noted (The Status of Refugees in International Law at pp 145-146), in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for, since it is well-known fact that a person who claims to be a refugee may have difficulties in proving his allegations (cf Gaudron J in Chan at 413); and it would go counter to the principle of good faith in the interpretation and application of treaties if a contracting state “should place on a suppliant a burden of proof which he, in the nature of things, could not possibly cope with”.  This should not, however, lead to “an uncritical acceptance of any and all allegations made by suppliants”.”

the real chance test

16                  An applicant’s fear of persecution for a Convention reason must be a “well founded” fear.  There is an objective element as is evidenced by the use of the expression “well founded”.  It is a requirement that is additional to the subjective feelings of the individual.  A person will have a “well founded fear” of persecution under the Convention if he or she has a genuine fear that is founded upon a “real chance” of persecution for one or more of the Convention reasons.  A fear will not be well founded if it is merely assumed or if it is speculative.  A “real chance” is one that is not remote or insubstantial or a far-fetched possibility.  A person can have a well founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389 (“Chan’s case”).  Thus Mason CJ explained the position in these words:

“But I prefer the expression “a real chance” because it clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring and because it is an expression which has been explained and applied in Australia:  see the discussion in Boughey v The Queen (1986)161 CLR 10 at 21 per Mason , Wilson and Deane JJ.  If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded, notwithstanding that there is less than a 50 per cent chance of persecution occurring.  This interpretation fulfils the objects of the Convention in securing recognition of refugee status for those persons who have a legitimate or justified fear of persecution on political grounds if they are returned to their country of origin.”

Dawson J said at 398 that a real chance is one that is not remote, “regardless of whether it is less or more than 50 per cent”, whilst McHugh J at 429 noted that an application for refugee status may have a well-founded fear of persecution even though there is only a 10 per cent chance that he will be shot, tortured or otherwise persecuted.  The approach that was taken by Gaudron J to this subject is best exemplified from the following passage in her Honour’s judgment at p 413:

“The humanitarian purpose of the Convention, the fact that questions of refugee status will usually fall for executive or administrative decision and in circumstances which will often not permit of the precise ascertainment of the facts as they exist in the country of nationality, serve, I think, to curb enthusiasm for judicial specification of the content of the expression “well-founded fear” as it is used in the Convention.”

Ms Layton QC, counsel for the applicant, relied on this passage from the judgment of Gaudron J, drawing from it the proposition that the starting point in an evaluation of any application for refugee status is the mental and emotional state of the applicant.  She then submitted that the Tribunal, in error, had applied an analytical, deductive rationalisation process to reject the material that had been placed before the Tribunal so that, as a consequence, the wrong standard of proof had been applied.  I think that such a broad and general summary must be tempered by reminding oneself that the mental and emotional state of the applicant is but another way of referring to the subjective element of the fear of persecution whilst the analytical, deductive rationalisation process serves as a reminder that any fear must be objectively assessed so that a decision can be made whether it is well-founded.

an incorrect application of the law

17                  The Tribunal accepted several aspects of Mr Kuqo’s evidence.  For example, it accepted that he was a supporter of the Democratic Party and that he did some intermittent work for it.  The Tribunal also accepted that Mr Kuqo’s father may have been imprisoned under the former communist regime and that his family suffered discrimination under the communists.  The Tribunal referred to country information that indicated, according to the views of the Tribunal, that there were hundreds of thousands of Albanians who were held in prisons by the former communist regime.  Amnesty International identified in its report on Albania, Failure to End Police Ill-Treatment and Deaths in Custody, published in April 1995, the origins and role of the group known as “Former Political Prisoners”:

“With the end of communist rule, a National Association of Former Political Prisoners, Internees, and Persecuted Persons (Association) was founded and was formally registered in August 1991.  The Association has branches throughout Albania and constitutes a significant lobby (it estimates that over 500,000 people suffered political persecution in the years of communist rule).  With certain exceptions, its members, together with their families, constitute one of the most indigent and disadvantaged groups in the country, although the government has taken certain measures on their behalf, mainly in the field of education and employment.  The Association campaigns for financial compensation, housing, education and employment for its members.”

18                  Speaking of that association, the Tribunal added that, since the fall of communism, both the Democratic and Socialist governments have sought to make restitution to these people, many of whom appeared to have been greatly wronged.  Country information indicates that this association has lobbied whatever party has been in power in Albania since 1991 to obtain special benefits or consideration for this group.

19                  During the course of the hearing before the Tribunal, Mr Kuqo supplied a statement from the Albanian Government which had been issued in 1997 after the Socialist Party had come to power; it confirmed that Mr Kuqo was a member of an association for the politically persecuted.  The Tribunal dealt with that statement in this way:

“Even if I accept that this document is authentic, it simply confirms the country information that this is a lobby group to which the government of the day pays close attention, and acknowledges that a person or their family has experienced ill-treatment during the former Communist Party rule.  It does not indicate persecution by the current Socialist alliance, which was democratically elected in 1997.”

To that statement the Tribunal later added the comment that membership of the association does not indicate that the applicant or his family had been high profile political activists in the ten years or so since the introduction of the multiparty system in Albania in 1990.  The Tribunal said:

“Indeed, despite the applicant’s claimed family political profile, the applicant has never indicated that he or his immediate family were involved in any high profile activities or any formal position in relation to this organisation or any other since its formation in 1991.”

20                  There were passages in Mr Kuqo’s evidence that the Tribunal would not accept.  It did not, for example, accept that he was a member of the Democratic Party.  It noted the prevalence of forged documents in Albania and pointed to the condition of the card that Mr Kuqo produced as alleged evidence in his membership.  The Tribunal could not accept that the high quality condition of the card was consistent with it having been used for over a period of four years.  In addition, the Tribunal did not accept that the failure of the authorities to give his father title to his house property in Tirana was a sign of discrimination:  nor did it accept that people had visited his father seeking his whereabouts since Mr Kuqo left Albania.

21                  The applicant next complained that the Tribunal applied the wrong test in assessing whether or not the applicant’s family was linked – or may be perceived to be linked – to the Democratic Party or its supporters.  It was submitted that the Tribunal erred in applying an evidentiary standard that effectively required the applicant to prove or to adduce independent evidence of the issue before the Tribunal would accept the accuracy of the claim.

22                  The applicant submitted that the Tribunal made adverse findings against the interests of the applicant because of what was called “a perceived lack of complete supportive evidence” of his case.  It was argued that the Tribunal did not consider the applicant’s allegations as a whole but, instead, took a “piecemeal approach”.  The complaint was that the Tribunal isolated portions of the evidence and criticised those aspects on an individual basis, thereby failing to consider the overall plausibility of the applicant’s story.

23                  I do not consider that there is substance in this complaint.  Indeed, I am of the opinion that the Tribunal would have failed in its duty if it had not given individual consideration to individual and disparate sections of the applicant’s evidence.  There is no doubt that there is an obligation on the Tribunal to stand back and look at the totality of an applicant’s story, bearing in mind the standards that are to be applied as identified by the authorities.  However, before that exercise can commence, there is the earlier obligation on the Tribunal to make its assessment of the various aspects of the applicant’s story.  It may accept some – it may reject others.  When it has carried out these many inquiries then, but only then, will the Tribunal be in a position to draw the threads together and reach its final conclusion.

membership of a particular social group

24                  Initially, Mr Kuqo’s claims were centred upon his political opinion.  Subsequently, however, during the course of the hearing before the Tribunal, and in submissions that were later made to the Tribunal, he advanced the issue of persecution because of his membership of a particular social group:  that group being his family.  As to this, the Tribunal came to the conclusion that it did not accept that the applicant was a member of a particular social group, in the context that it did not accept that he was a member of a politically prominent family.  The Tribunal was of the opinion that the evidence did not support a finding that he faced a real chance of persecution for reasons of his membership of his family.  The Tribunal also noted that the claimed incidents involving Mr Kuqo’s relativesoccurred since he had filed his application for refugee status.  Describing the claims as general and vague, the Tribunal went on say that “even if these people have been harmed as claimed, there is no evidence to suggest that this is the result of their Democratic Party activities, or the result of their membership of their extended family”.  In rejecting Mr Kuqo’s application for refugee status, the Tribunal concluded with these remarks:

“These accounts are consistent with country information about the amount of criminal activity and generalised violence in Albania today.  The fact is that, despite some improvements since 1997, Albania still has a large number of organised criminal gangs, unemployment is high, and the population remains heavily armed.  There is any number of reasons why these incidents may have occurred.”

25                  In his amended application for an order for review, the applicant nominated seven areas in the Tribunal’s reasons, saying of each of them that the Tribunal had applied the wrong test in assessing the evidence of refugee-hood:  he alleged that the Tribunal did not apply the “well-founded” or “real chance” test to these seven issues.  It was then submitted that the Tribunal had applied an evidentiary standard which effectively required the applicant to prove or to adduce independent corroborative evidence of all issues before the Tribunal would accept them.  There then followed five pages wherein ten examples of this alleged incorrect standard were particularised.

26                  It is not necessary to examine each of these complaints individually as some of them can be grouped together.  For example, it was alleged that the Tribunal did not apply the “well-founded” or “real chance” test to various subsidiary issues such as:

·                    whether Mr Kuqo was a member of the Democratic Party;

·                    whether Mr Kuqo or his family may be perceived to be linked to the Democratic Party;

·                    whether Mr Kuqo’s membership of the association of Formerly Politically Persecuted Persons provides the current Socialist Government with a record of the applicant’s imputed pro-democracy sympathies;

·                    whether Democratic Party members, including members of Mr Kuqo’s family, have been subjected to attacks and intimidation;

·                    whether Mr Kuqo was “at special risk of being targeted” by reason of his family being prominent and known for their pro-democracy views.

27                  These complaints do not, however, do justice to the reasons of the Tribunal and to the language of the Tribunal’s reasons.  The Tribunal did discuss these issues, and in the course of doing so, it formed opinions and reached conclusions that were adverse to the interests of the applicant and contrary to propositions that had been advanced on his behalf.  Those results cannot, however, be cause for complaint without more. To reject the evidence of the applicant that he was a member of the Democratic Party is a conclusion that was open to the Tribunal for a justifiable reason.  The question then is whether the Tribunal reached the conclusion by an impermissible route.  As to that particular issue, the applicant produced a document that had the appearance of being a Party Membership Card.  However, the Tribunal formed the view that it was a forgery.  It came to that conclusion because there was general information available to the Tribunal that forgery of documents was rife in Albania and specifically because of the state or condition of the Card.  Its appearance was inconsistent with a document of its purported age.  Perhaps not all observers would have come to the same conclusion as that which was reached by the Tribunal, but it could not be said that the opinion was not open to the Tribunal.  I do not consider that the Tribunal’s decision can be challenged under par 476(1)(e) of the Act. 

no evidence

28                  It was also claimed that the Tribunal erred because there was no evidence that could justify the Tribunal reaching the conclusion that the applicant was not a member of the Democratic Party.  A core complaint was the passage in the Tribunal’s reasons where the Tribunal said:

“I therefore do not consider the father to be a prominent political activist.”

To appreciate how the Tribunal came to that conclusion it is necessary to quote in full the paragraph from the Tribunal’s reasons in which it appears:

“He said his father had been at the front of the Balli Kambetar party building when a bomb had exploded, but I do not consider from his description that his father in particular was targeted.  The applicant had made no claim of this at hearing.  He did not claim his father was a party official or held any senior position in the party.  I therefore do not consider the father to be a prominent political activist.  I note that this claim has been made in the submission after hearing, but I put no weight on this when it had not been raised in prior submissions of questioning.  I consider therefore that this event was one where the applicant’s father happened to be in the wrong place at the wrong time.  I note that, despite his father’s claimed activity, the applicant’s father in fact still resides in the same place allocated to him by the government in 1992, and nothing has happened to him in that time, including since the Socialist government has been elected to power.”

29                  In discussing the evidence about the political activities of the applicant’s father, the Tribunal first said:

“He said his father was a member of the Democratic Party.  He was asked to clarify this, as his father had been listed in his submission as a member of the Balli Kambetar Party.  He said that his father was a member of the party.  He had made a mistake about him being a member of the Democratic Party.”

This subject was apparently treated as a matter of importance by the Tribunal for it returned to the question of the father’s political affiliation at a later stage in its reasons saying:

“… he initially said his father had been a member of the Democratic Party.  It was only when I put to him that his father was stated earlier as being a member of the Balli Kambetar Party that he agreed that this was the case.”

These observations are not compatible with the evidence.  In the transcript of the proceedings in the Tribunal, the following passage appears:  (I have made corrections to allow for obvious mistakes):

“Tribunal Member:    Was your father a member of the Democratic Party?

Mr Kuqo:                  Yes, he was.  My grandfather too.  Actually, my father is different party, which is anti Communist again, which called Balli Kambetar.”

The two extracts from the Tribunal’s reasons which are quoted in the immediately preceding paragraph, are not correct summaries of the applicant’s evidence.  In the first place, it is quite clear that the applicant immediately corrected his initial answer “Yes” by explaining that his father belonged to a different party but it was still a party that was opposed to the Communists.  Secondly, the applicant volunteered his mistake:  the Tribunal did not have to correct him.

30                  The question that must now be decided is whether or not this mistake on the part of the Tribunal is sufficient to justify the intervention of this Court.  I have not found this an easy question to answer.  In many respects it might be said that it is a peripheral area and that it is of little or no concern whether the applicant did or did not say that his father was a member of the Democratic Party.  However, there is another way of looking at that passage in the applicant’s evidence and the Tribunal’s assessment of his evidence.  Mr Kuqo was advancing a case of political persecution.  His claim was that he was a card carrying member of the Democratic Party and that his political enemies, the Socialists, were now in power.  He also claimed that his father had a political involvement that was opposed to the Socialists.  In rejecting the applicant’s claim that he was a member of the Democratic Party the Tribunal, in the same paragraph, listed its several reasons for its rejection and one of those reasons, by implication, was the supposedly incorrect evidence that the applicant gave about his father’s membership of the Democratic Party.  It seems to me that there is a reasonable risk that this finding by the Tribunal might have been a link in its chain of reasoning which led to the Tribunal concluding that the applicant did not have a well-founded fear of persecution should he be returned to Albania.

31                  There then remains the question whether the Tribunal based its decision of the existence of a particular fact – that the applicant had stated that his father was a member of the Democratic Party – and that fact did not exist.  The particular fact that did not exist need not be the sole basis for the decision.  It is sufficient if it is a link in the chain of reasoning that led to the decision: Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 at 220-221.  Furthermore, it has been said that par 476(4)(b) is only a “gateway” which must be passed through; it is still necessary to establish that there was no evidence or other material to justify the making of the decision:  Pat Tai Choi v Minister for Immigration and Multicultural Affairs [1998] FCA 1556.

32                  Although there is a primary onus on an applicant to make out his case, The Handbook on Procedures and Criteria for Determining Refugee Status (1979) published by the Office of the United Nations High Commissioner for Refugees states at paragraphs 203 and 204 that the benefit of a doubt ought to be given to an applicant who has made a genuine effort to substantiate his story.  However, the Handbook sounds a note of warning by concluding that passage with these words:

“… benefit of the doubt should, however only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility.  The applicant’s statements must be coherent and plausible, and must not run counter to generally known facts.”

33                  The available evidence had been obtained, but the Tribunal had misinterpreted a passage in that evidence which may have influenced it in coming to its primary conclusion that it did not accept the applicant when he said that he was a member of the Democratic Party.  There is no way of knowing what decision the Tribunal may have reached if it had not made that mistake, but that is not the test.  The mistake was made:  the Tribunal relied on a fact and that fact did not exist.  It may have influenced the Tribunal in reaching its decision.  That, in my opinion, is sufficient to justify intervention of the Court for, if it was the factor that led to the Tribunal’s decision, one would then be left with the conclusion that there was no evidence or other material to justify the making of the decision. 

34                  There will be an order that the matter be remitted to the Tribunal, differently constituted, for further consideration in accordance with these reasons.  The respondent is to pay the applicant’s costs which are to be taxed in default of agreement.

Associate:

Dated:              31 May 2001