FEDERAL COURT OF AUSTRALIA

Zyfi v Minister for Immigration & Multicultural Affairs [2001] FCA 978

Migration Act 1958 (Cth) ss 430, 476

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 considered

Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 cited

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405 cited

Selliah v Minister for Immigration and Multicultural Affairs [1999] FCA 615 applied

Minister for Immigration and Multicultural Affairs v Al‑Miahi [2001] FCA 744 applied

Jegatheeswaran v Minister for Immigration and Multicultural Affairs [2001] FCA 865 applied

Minister for Immigration and Multicultural Affairs v Indatissa [2001] FCA 181 applied

Minister for Immigration and Multicultural Affairs v Li (2000) 176 ALR 66 cited

Rahman v Minister for Immigration and Multicultural Affairs [2001] FCA 368 cited

Guden v Minister for Immigration and Multicultural Affairs (2000) 58 ALD 352 explained

PELLUMB ZYFI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 578 OF 2000

SUNDBERG J

26 JULY 2001

MELBOURNE

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The applicant pay the respondent’s costs of the application.

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

REASONS FOR JUDGMENT

BACKGROUND

1                     The applicant is a citizen of Albania who arrived in Australia on a visitor’s visa in June 1997 and on 31 July applied for a protection visa.  The visa was refused by the Minister’s delegate, and that decision was affirmed by the Refugee Review Tribunal.  The applicant seeks review of the Tribunal’s decision under Part 8 of the Migration Act 1958.

APPLICANT’S CLAIMS

2                     In his application form the applicant claims that during the March 1997 civil war in Albania he was called‑up for military service.  He refused to comply as he did not wish to shoot fellow Albanians.  He said that in March 1997 his brother was in the army doing his basic service training, and during the civil unrest was forced into riot control and ordered to fire on unarmed civilians.  His brother became involved in the unrest and killed two officers who were ordering army personnel to kill civilians.  His brother also killed another soldier, but refused to kill fellow civilians.  The applicant says his brother was then killed and the secret police targeted the applicant’s family, whose house was bombed by the authorities.  The applicant split his family (wife and two children) up among friends and travelled to Macedonia where he left for Australia.  He claims that if he returns to Albania he will be killed like his brother by former secret police or military officers, or alternatively by the families of his brother’s victims in accordance with the tradition of vendetta that exists in Albania.  He submitted various documents in support of his case to which it will be necessary to refer later in these reasons.  In his application to the Tribunal the applicant claimed he and his family were heavily involved in the overthrow of the Albanian Government, and that he is now suffering the consequences of this.  During his oral evidence the Tribunal put to the applicant concerns it had about the authenticity of some of the documents he had submitted as verification of his claims, and questioned him generally about those claims.  The Tribunal records the applicant as having summed up his claims by stating that if he returned to Albania he would be in danger because of his political opinion.  By refusing to obey the call‑up notice he was regarded as having betrayed his country, and as being a member of a group opposed to the Democratic Party.  He was being sought by the Albanian authorities.

TRIBUNAL’S REASONS

3                     The Tribunal did not regard the applicant as a credible witness.  It did not accept his claim that he refused to obey a call‑up notice said to have been received by him on 3 March 1997, one of the documents he presented in support of his case.  This was because country information disclosed that there was no call‑up of people such as the applicant on that day.  The Tribunal did not accept the applicant’s claim that his call‑up resulted from the state of emergency legislation passed by the Albanian Parliament on 2 March 1997.  After setting out details of the emergency legislation and the enabling legislation of 3 March, the Tribunal noted that the former did not require a call‑up of non‑active military or reserve personnel, and the latter stated only that “Nationals presently in military service will continue this service until the state of emergency ends”.  The legislation did not substantiate the applicant’s claim that he was called up in response to the “Law of Extraordinary Circumstances Number 8194”.  The Tribunal noted country information indicating that the government called for volunteers to assist in maintaining control during the state of emergency, and did not conscript people for service.  The Tribunal accepted that the undated call‑up notice submitted by the applicant was a genuine document, but did not accept that it was issued in 1997.  This was because it was headed “People’s Socialist Republic of Albania” which had been changed six years earlier to “Republic of Albania”.  Accordingly the Tribunal did not accept the applicant’s claim that he had to go into hiding before his departure from Albania because he did not comply with the call‑up notice, or that he will be punished if he returns to Albania because he did not report for duty in March 1997.

4                     The applicant relied upon a Summons dated 27 October 1998 requiring him to appear at a court hearing regarding a case started against him in April 1997 for failure to attend for army duty.  The Tribunal found this was not a genuine document.  It had been submitted to the Tribunal at a late stage, and the Tribunal did not believe the reason stated for the lateness, namely that the applicant’s family had not sent it to him earlier because they were afraid it would discourage him from returning to Albania.  The Tribunal concluded that the certification of the Summons by a notary public was not genuine because it was not in Albanian script, and was such a poor translation that it could not accept that it had been prepared by an accredited translator as claimed in the document.  For these reasons the Tribunal found that the applicant was not being prosecuted for failing to obey the call‑up.  It followed from the Tribunal’s finding that the applicant had not refused to obey a call‑up notice that it did not accept that, because of a refusal, he was regarded as having betrayed his country and as being opposed to the Democratic Party, and therefore at risk of harm by supporters of the Party, including members of the secret police and army.  It concluded that there was not a real chance that the applicant would be persecuted if he returns to Albania because he is a member of a particular social group which refused to obey a call‑up for military service, or that he will be persecuted for his political opinion or a political opinion imputed to him because he did not obey a call‑up notice.

5                     The Tribunal then dealt with the applicant’s claim that if he returns to Albania he will be the target of a blood feud because his brother killed two officers and a soldier.  The Tribunal accepted that under the tradition of vendetta in Albania, a victim’s family may take revenge at any time on any male of a rival family, regardless of age.  But it did not accept that the applicant’s brother had killed three military personnel because he was ordered to shoot civilians.  It referred to country information that showed that members of the armed forces deserted or simply put up no resistance to civilians who attacked military installations.  Since the Tribunal did not believe the brother had killed three military personnel, it did not accept that the applicant’s house was bombed and his truck burned, and that he was threatened and forced into hiding because the families of the dead soldiers and the secret police were seeking revenge.  The Tribunal regarded as “clearly forged” three documents submitted by the applicant in verification of these claims ‑ a hospital report relating to the death of the brother from a firearm wound, a certificate that the brother had killed two officers and a soldier “in unknown conditions”, and another certificate that the applicant was homeless because his house had been damaged by a bomb.  The Tribunal noted that while the submission of forged documents did not of itself show the applicant’s story was untrue, they did not support his claims, and reflected adversely on his credibility.  The Tribunal observed that the applicant’s other brother had been living in Albania for much of the past three years and had not been harmed by the families of those killed by the deceased brother.  This provided support for the Tribunal’s view that there was no blood feud threatening the applicant.

6                     The Tribunal concluded that it was not satisfied that there was a real chance that the applicant will be persecuted for reasons of his political opinion or for a political opinion imputed to him, or for his membership of a particular social group or for any other Convention‑related reason, if he returns to Albania now or in the foreseeable future.  Accordingly it found that his fear of persecution was not well‑founded.

GROUNDS OF REVIEW

Procedures not observed ‑ s 476(1)(a)

7                     In written submissions filed before the High Court’s decision in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 the applicant contended that the Tribunal had failed to set out findings on various material questions of fact, and that this failure to comply with s 430(1) of the Migration Act 1958 was a failure to comply with a “procedure” for the purposes of s 476(1)(a).  In amended submissions filed after Yusuf it was submitted that that case was not authority that the things the Tribunal’s written statement is required by s 430 to do are not procedures for the purposes of s 476(1)(a).  It was said that the majority justices did not express a concluded view on the matter, while the two dissenters (Gaudron J and Kirby J) decided that those things were procedures.  It was then submitted that the validity of each of the documents tendered by the applicant was a material question of fact.  It was said that the findings that the documents were not genuine were based on a combination of primary facts, in respect of which findings were made, and primary facts that were simply assumed.  The former facts were

·               the documents relating to the death of the brother and the bombing of the applicant’s house had all been typed on the same typewriter with a smudged letter “a”, and

·               the translation of the summons had not been prepared by the person who had prepared the other translations.

The primary facts that were assumed by the Tribunal were

·               documents from Albanian government departments would always be typed on official letterhead

·               documents from Albania would always be typed in “Albanian script”

·               a person in Albania could not be summoned to court by means of a photocopied pro‑forma.

It was submitted that apart from the reference to the smudged letter “a”, the Tribunal did not refer to the evidence or any other material on which the first finding was based, and that apart from the assertion that the translation of the summons was a poor one compared with the others, the Tribunal did not refer to the evidence or any other material on which the second finding was based.  Cf s 430(1)(d).

8                     I deal first with the submission that, notwithstanding Yusuf, the requirements in s 430(1) are “procedures” within s 476(1)(a).  Gleeson CJ was of the view that to treat a failure to make a finding of fact as required by s 430(1)(c) as a failure to observe a procedure in connection with the making of a decision involved a “strained interpretation” of the language of s 476(1)(a), especially in a context which distinguishes between somewhat attenuated legal review and full merits review: at [8] and [10].  McHugh, Gummow and Hayne JJ said that an “alleged failure to make a finding of fact on a material question is not a failure to observe a ‘procedure … required’ by the Act”: at [77].  They went on to doubt whether an obligation to “set out” findings could be said to be a procedure to be observed in connection with the “making” of the decision, since the setting out of the decision and reasons assumes that the decision has already been made.  Their Honours did not find it necessary to express a concluded view on that point.  Callinan J held that a failure to comply with s 430 does not give rise to a ground of review under s 476(1)(a): at [203], [205].  Later at [212] his Honour said:

“In ordinary language, the making of a factual finding would not readily answer a description of complying with a procedural requirement.  Finding a fact is part of the process of reaching a decision.  It is more than, and different from, complying with a procedural requirement.  That is how s 476(1)(a) in my opinion should be read.  So read, it may be capable of operating with respect to, for example, the procedural requirements required by s 66 and Div 4 of Pt 7 of the Act but not to the exposure of the reasoning process by which a conclusion is reached.”

Gaudron J was of the opinion that s 476(1)(a) extended to the procedures required by s 430 to be observed: at [31].  Kirby J was of the same view: at [145‑146].

9                     Gleeson CJ and McHugh, Gummow and Hayne JJ have held that the requirement in s 430(1)(c) is not a “procedure” within s 476(1)(a).  But I do not regard them as having decided that none of the other requirements in s 430(1) is a procedure.  The case only concerned s 430(1)(c).  Callinan J spoke more broadly of s 430(1), and some of his Honour’s language suggests that none of the requirements in that section is a procedure.  Gaudron and Kirby JJ were of the view that each of those requirements is a procedure.  In those circumstances I should proceed on the basis that Yusuf does not decide that the requirement in s 430(1)(d) to refer to the evidence or other materials on which the findings of fact were based is not a procedure.  I will assume it is.

Documents relating to brother and alleged bombing

10                  The Tribunal said that although the documents were supposed to come from three different government organisations in Albania, they had all clearly been typed on the same typewriter which had a smudged “a”.  The complaint that the Tribunal did not refer to the evidence or other material on which this finding was based is not made out.  The evidence or other material consisted of the documents themselves.  The Tribunal inspected them and recorded its conclusion based on that inspection.  There was nothing more it could have done in order to satisfy s 430(1)(d).  The very formulation of the applicant’s complaint (“Apart from the smudged letter ‘a’…”) concedes its weakness.

Summons prepared by different translator

11                  The Tribunal said that even though it was stated on the Summons that it had been translated by the accredited translator who had translated the applicant’s other documents, it was a poor translation and had clearly not been prepared by the same person.  The evidence or other material on which this finding was based consisted of the Summons and the other documents.  The Tribunal inspected them and recorded its conclusion based on that inspection.  There was nothing more it could have done in order to satisfy s 430(1)(d).  Again the formulation of the complaint (“Apart from the assertion that the translation of the court summons was a poor translation in comparison to the other translations …”) discloses its weakness.

Other complaints under s 476(1)(a)

12                  The applicant complained of a failure by the Tribunal to refer to certain parts of the evidence ‑ a newspaper article, an explanation by the applicant for the outdated country name on the call‑up notice, and the seal on the notice displaying the current name.  The Tribunal is not obliged expressly to reject or refer to evidence that is inconsistent with its findings: Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 at [46], [56], [93] and Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405 at [64]‑[65].  In fact the Tribunal did refer to the newspaper article and gave reasons for concluding that it was unreliable (pages 20‑21).  The applicant also contended that the Tribunal failed to address or make findings in relation to the applicant’s subjective fear of persecution.  The Tribunal was not obliged to make such a finding.  It was entitled to assume the existence of a subjective fear and then assess whether any such fear would be well‑founded: Selliah v Minister for Immigration and Multicultural Affairs [1999] FCA 615 at [40].  That is what the Tribunal did here.  See par 6 above and page 24 of the Tribunal’s reasons.  Finally it was contended that the Tribunal failed to make a finding on the applicant’s claim that the Democratic Party opposition was still calling on the government to prosecute people who disobeyed orders during the time of national emergency.  The Tribunal was not obliged to make such a finding: Yusuf.  In any event, since the Tribunal clearly rejected the claim that there was a call‑up in March 1997, this particular claim did not raise a question of material fact.

No evidence ‑ s 476(1)(g)

13                  The submission here is that the Tribunal’s decision was based on the following supposed facts that did not exist:

·               the documents relating to the death of the brother and the bombing of the house had all been typed on the same typewriter with a smudged letter “a”

·               the translation of the Summons had not been prepared by the translator who had prepared the other translations

·               documents from Albanian government departments would always be typed on official letterhead

·               documents from Albania would always be typed in Albanian script

·               a person could not be summoned to an Albanian court by means of a photocopied pro forma.

14                  In Minister for Immigration and Multicultural Affairs v Al‑Miahi [2001] FCA 744 at [35] a Full Court said:

“The application of s 476(1)(g) and s 476(4)(b) in any particular case requires the following steps:

·               A relevant particular fact first must be identified.

·               Then it is necessary to determine whether there was any evidence before the Tribunal to justify a finding of that fact.  If there was such evidence, the ground cannot be made out.

·               If there was no such evidence, it is next necessary to apply the second limb of (4)(b).  If there is no evidence, on review, to show that the fact did not exist, the ground cannot be made out.

·               If there is evidence, on review, to show that the fact did not exist, it is then necessary to apply the first limb of (4)(b).  That requires an analysis of the Tribunal’s reasoning to determine whether its decision was based on that fact.”

See also Jegatheeswaran v Minister for Immigration and Multicultural Affairs [2001] FCA 865 at [31].

15                  I doubt whether the third, fourth and fifth supposed facts are “particular facts” for the purposes of s 476(4)(b).  The applicant concedes that these facts are “left unstated” or are “simply assumed” by the Tribunal.  In my view they are part of the Tribunal’s reasoning process.  Thus the Tribunal explains why it regards three documents as clearly forged:

“Although the documents were supposed to come from three different government organisations in Albania, they had all been typed on plain paper without a letterhead, none of them were in Albanian script and they had all clearly been typed on the same typewriter which had a smudged ‘a’.”

In explaining why it regarded the Summons as “not a genuine document”, the Tribunal noted that it had been submitted late in the piece, and it did not accept the explanation for the lateness.  It continued:

“The document was not an original court document, it was a photocopied pro forma.  Even though it was stated on the document that it had been translated by the accredited translator who had translated his other documents, it was a poor translation, the translator’s certificate was not in Albanian script, and clearly it had not been prepared by the same person.”

A statement in the course of such reasoning, for example that the document was not an original court document but was a photocopied pro forma, is not accurately rendered by the assertion that the Tribunal found as a fact that “a person could not be summoned to Court by means of a photocopied pro forma”.

16                  But in case I am wrong, I will assume that each of the supposed facts in par 13 is a “particular fact”.  The next question is whether there was evidence to support these facts.  There was evidence to justify the typewriter finding.  The setting out and structure of each document is the same, as is the typeface.  Although the letter “a” is not smudged in all cases where it appears, it is in many.  The Tribunal put to the applicant its belief that the letters had all been typed on the same typewriter with a smudged letter “a”, and records that he was unable to provide any explanation.  In any event, there was no evidence to the contrary of the supposed fact, ie that the documents had not been typed on the same typewriter which did not have a smudged “a”.  There was evidence to support the finding that the translator of the Summons was not the person who translated the other documents.  The Summons and the other documents themselves, and the comparison they provided, supported the finding.  There was no evidence to support the third, fourth and fifth facts.  The Tribunal made certain assumptions about how institutions of government worked.  But there is no evidence that those facts did not exist.  Accordingly this ground is not made out in relation to any of the supposed facts.  On the view I have taken it has not been necessary to deal with the fourth Al‑Miahi step, namely whether the Tribunal’s decision was based on the supposed facts or any of them.

17                  The formulation of the approach to s 476(1)(g) as affected by sub‑s (4)(b) illustrated by Al‑Miahi and Jegatheeswaran involves inquiring whether there was evidence or other material to justify a finding of the particular fact in question.  Other cases have asked instead whether there was evidence or other material to justify the making of the decision.  See, for example, Minister for Immigration and Multicultural Affairs v Indatissa [2001] FCA 181 at [26] and Minister for Immigration and Multicultural Affairs v Li (2000) 176 ALR 66 at [45]‑[47].  On this approach the “decision” to which s 476(4)(b) refers is the decision the subject of s 476(1)(g), namely the judicially reviewable decision mentioned in the introductory words of s 476(1).  In the present case the decision is the Tribunal’s decision to affirm the delegate’s decision not to grant the applicant a protection visa.  If there is some evidence capable of supporting the Tribunal’s decision, the s 476(1)(g) ground cannot be made out even if there is no evidence to support the finding of a particular fact: Li at [54] and Rahman v Minister for Immigration and Multicultural Affairs [2001] FCA 368 at [11]‑[13].

18                  The Tribunal’s decision was based on two primary findings ‑ that the applicant was not called up on 3 March 1997 as he claimed, and that his brother had not killed three soldiers.  There was some evidence for each of those findings.  In relation to the first, the Tribunal concluded that the applicant was not a credible witness and did not accept his claim that he refused to obey the call‑up notice of 3 March 1997.  Country information disclosed that there was no call‑up of people such as the applicant on that day.  The state of emergency legislation passed on 2 March 1997 did not support the applicant’s claim that his call‑up resulted from that legislation.  The legislation did not require a call‑up of non‑active military or reserve personnel.  Nor did the enabling legislation of 3 March support the applicant’s claim.  It dealt only with those “presently in military service”.  The Tribunal therefore rejected the applicant’s claim that he was called‑up in response to the “Law of Extraordinary Circumstances Number 8194”.

19                  There was also some evidence to support the Tribunal’s finding that the brother had not killed three soldiers.  The Tribunal referred to a range of country information showing that members of the armed forces “deserted or simply put up no resistance to civilians who attacked military installations”.  Based on its view that the applicant was not a credible witness and on the country information before it, the Tribunal did not think it plausible that had the brother been ordered to fire on unarmed civilians he would have responded by killing two officers and another soldier, particularly when all over Albania other conscripts were simply deserting or refusing to fire on civilians.  Accordingly it found his claim to be untrue.  Further, the point of the claim was to substantiate the applicant’s case that if he were to return to Albania he would be killed, in accordance with the vendetta tradition, by the families of those shot by his brother.  The Tribunal noted that the applicant’s other brother had been living in Albania for much of the past three years, and had not been harmed.  It concluded that the fact that this brother had not been harmed indicated that there was no blood feud threatening the applicant.

20                  It is necessary now to deal with a specific submission that was at the forefront of the applicant’s case on s 476(1)(g).  This was that the requirement articulated in cases such as Indatissa, Al‑Miahi and Jegatheeswaran, that there be evidence that the supposed fact did not exist, is inapplicable to what counsel described as “unarticulated generalisations” such as the third, fourth and fifth supposed facts.  Support for this submission was sought to be derived from Guden v Minister for Immigration and Multicultural Affairs (2000) 58 ALD 352.  The Tribunal in that case had not accepted the appellant’s claim that he had been politically active since 1977/78 and concluded that this aspect of his claim was fabricated.  It made this finding on the basis that in the appellant’s initial submission he did not claim to have been politically active until a much later date.  It found that such a significant part of his history would not have been overlooked in setting out the core of his claim if it had been true.  The Full Court upheld the appellant’s contention that a particular fact, namely that “the appellant was required to set out, in effect the whole of his case which bore upon the issue of his political persecution”, did not exist.  Counsel submitted that the Full Court upheld the appellant’s contention that this fact did not exist on the basis that there was no evidence to support its existence without also requiring evidence to show that the fact did not exist.  This, it was said, would appear to be inconsistent with Indatissa, Al‑Miahi and Jegatheeswaran, because what was described as the third step in Al‑Miahi was not insisted upon.  Counsel then sought to reconcile Guden with the more recent cases by drawing the distinction noted earlier between a fact arising from evidence and an unarticulated generalisation which provides a justification for the drawing of an inference.

21                  Attractively and persuasively though the submission was put by Mr Palmer, who appeared pro bono for the applicant, I am unable to accept that the third, fourth and fifth supposed facts are analogous to the supposed fact in Guden.  The Guden fact was not susceptible of disproof by the calling of evidence.  On the other hand, if it is the case that documents emanating from Albanian government departments are often typed on plain paper without an official letterhead, and are often not typed in Albanian script, evidence to that effect could have been led.  Similarly, if persons are often summoned to Albanian courts by means of photocopied pro forma documents, that could have been the subject of evidence.  The initial submission in which the applicant in Guden did not mention his early political involvement was his application for a protection visa.  The Court pointed out that the only relevant question in the application form (which asked the applicant a number of questions he was required to answer) was “Why did you leave that country?”.  The Court was of the view that this required an answer which referred to the events that crystallised the decision to leave, or acted as a catalyst in the appellant making that decision.  It did not call for an historical explanation going back over twenty years.  The Court concluded (at [17]):

“Thus, the fact which did not exist was the fact that the appellant was required to set out, in effect, the whole of his case which bore upon the issue of his political persecution.”

In other words, the decision was based on the construction of the question posed in the form.  The question did not require the applicant to tell his life story, only why he decided to leave Turkey at the time he did.  As a result of the Court’s conclusion as to the construction of the question in the form, it was able to say that the fact that did not exist was that the appellant was required to set out the whole of his political persecution case in answer to the question why he left Turkey.  Contrary to Mr Palmer’s submission, there was thus no unarticulated generalisation on the Tribunal’s part that “an applicant is required to set out, in his or her initial application, the whole of his or her case which bears upon the issue of his or her political persecution”.

CONCLUSION

22                  The application must be dismissed with costs.

Associate:

Dated:              26 July 2001