FEDERAL COURT OF AUSTRALIA

Minister for Immigration & Multicultural Affairs v Shatku [2001] FCA 1857

MIGRATION – protection visa – significance of prevalence of document fraud in Albania – whether primary judge erred in finding that Tribunal had effectively imposed impermissible evidentiary onus on respondents – whether findings of Tribunal open to it on the evidence

Migration Act 1958 (Cth) s 476(1)(e)

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 referred to

Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 referred to

Minister for Immigration & Multicultural Affairs v Indatissa [2001] FCA 181 referred to

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v ALTON SHATKU & ANOR

S 79 OF 2001

GRAY, DOWSETT & STONE JJ

21 DECEMBER 2001

SYDNEY (heard in Adelaide)

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The appeal be allowed.

2.                  The judgment and orders of the primary judge made on 31 May 2001 be set aside and in lieu thereof the respondents’ applications be dismissed.

3.                  The respondents pay the appellant’s costs at first instance and on the appeal.

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

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

THE COURT:

Introduction

1                     Alton Shatku and his wife Anila Kiri are citizens of Albania who left Albania for Germany in 1991 and 1992 respectively.  They lawfully resided in that country until 1994 when they returned to Albania to marry and to better their German visa conditions.  They returned to Germany in January 1995 on a sports visa that enabled Mr Shatku to work as a basketball player and coach.  Between June 1996 and November 1998, Mr Shatku visited Albania on at least nine occasions.  Ms Kiri went to Albania at least once, in December 1998.  The respondents arrived in Australia on false passports on 13 December 1998.  On 11 January 1999 they lodged applications for protection visas with the Department of Immigration and Multicultural Affairs under the Migration Act 1958 (Cth) (“the Act”).  A delegate of the appellant Minister refused to grant protection visas on 29 March 1999.  On 6 June 2000 the Refugee Review Tribunal (“Tribunal”) upheld that decision. On 31 May 2001 the Tribunal’s decision was set aside by order of a judge of this Court. The appellant now appeals from the whole of his Honour’s judgment.

The respondents’ claims

2                     The respondents claimed that they were entitled to protection visas because they had a well-founded fear of being persecuted for reason of “their membership of a particular social group”, namely the Shatku family.  The claim of both respondents rested on those of the first respondent.

3                     The first respondent based his claim for protection on the existence of a blood feud involving his family that started when his grandfather, while in prison between the late 1940’s and early 1950’s, killed a man who was a member of the Pjetri family.  In relation to his claims the first respondent made the following allegations.

·        In 1991 the first respondent was told that the feud would be pursued and that because his grandfather and father were both dead, he would be killed. As a result he and his brother both left Albania and the first respondent went to Germany.

·        In Germany the first respondent restricted his basketball playing to State league competition in order to keep a low profile.

·        In April 1998 the respondents’ apartment in Germany was broken into, their possessions were damaged and a note in Albanian was left saying that, “next time it would be different”. The first respondent interpreted this incident as indicating that the blood feud was still an active issue.

·        As a result of this incident, the respondents moved to another address within the same town in Germany. They did not, however, report the incident to the German authorities.

·        His mother had been told that “her sons would be killed, for revenge” and consequently she moved about 120 kilometres from Shkoder to the Albanian capital, Tirana. This move enabled the first respondent to visit his mother although he did not feel completely safe and remained hidden during these visits.

·        On his behalf a friend had approached Albanian organisations set up to try to reconcile blood feuds but had been unsuccessful in achieving reconciliation of the blood feud affecting the first respondent's family.

The Tribunal’s decision

4                     In reaching its decision, the Tribunal tested the first respondent’s claims against independent country information. It also referred to documentary evidence tendered by the first respondent. The Tribunal described this evidence, to which it eventually attached no weight, (see [10] – [11] below) as:

“an extract of the codification of blood feuds, the Code of Lek, and other information about blood feuds in Albania, including a video. … copies of statements said to be from Albanian authorities about blood feuds generally, efforts to reconcile the alleged blood feud, and about the [first respondent’s] grandfather’s imprisonment from 1944 to 1957, and a statement translated from German from neighbours about the break-in incident in Germany.”

5                     The Tribunal accepted that blood feuds under the Code of Lek occurred in Albania around the time that the first respondent’s grandfather may have been imprisoned.  The Tribunal was not satisfied, however, that the first respondent’s grandfather had killed a man whilst in prison or that the Shatku family itself was involved in a blood feud.  Consequently the Tribunal rejected the first respondent’s evidence that, because of the feud, he and his brother fled Albania and that his mother moved to Tirana.  Given the Tribunal’s finding that there was no relevant blood feud, it followed that the Tribunal found that the first respondent did not have a well-founded fear of persecution for reason of his membership of a particular social group, that is, his family.

6                     The Tribunal gave a number of reasons for rejecting the existence of a blood feud.  First the Tribunal noted that it had no evidence that the first respondent’s grandfather had ever killed a man.  Even assuming that the document produced by the first respondent concerning his grandfather’s imprisonment was genuine, it did not refer to any such incident.  The Tribunal rejected the first respondent’s claim that he had been told of the blood feud by a member of the other family. It observed that there was no evidence to suggest that the Code of Lek required such notice to be given and, in the absence of such a requirement, it was implausible that the family would do so especially as they then took no action against the first respondent.

7                     The Tribunal also pointed to the number of times that the first respondent had returned to Albania since leaving there in 1991. In particular, the Tribunal noted that three of these visits had occurred after the alleged invasion of the flat in Germany when a threatening note had been left.  The Tribunal observed that “[t]hese do not seem to me to be actions of a man in fear of his life from a blood feud in Albania”.

8                     The Tribunal did not accept the first respondent’s claim that he had to return because his mother was an invalid, pointing out that in this case she would require someone to care for her in between his visits. In addition the Tribunal did not accept that his visits would have passed unnoticed by others and expressed the opinion that if the other family intended to kill him they could have done so during these visits.

9                     The Tribunal also found that there was nothing to link the alleged break-in to the respondents’ flat in Germany to the alleged blood feud. Although written in Albanian the contents of the note as described by the first respondent did not refer to a blood feud. Moreover, although the first respondent left that flat he continued working at the same job in the same town. Similarly, the statutory declaration confirming the break-in to the respondents’ flat did not mention a blood feud and provided no confirmation of the alleged blood feud. The Tribunal also expressed surprise that such an incident would not have been reported to the German police particularly in the light of their efficiency as noted in the country information reviewed by the Tribunal.

10                  In relation to the documentary evidence described above, the Tribunal had a number of difficulties. The Tribunal referred to various independent reports concerning the prevalence and sophistication of document fraud in Albania. It noted that the respondents arrived in Australia on forged passports. It stated:

“The [first respondent] has shown himself to have the ability and the will to utilise false documentation to suit his own purposes. Taken with the information about the extent of document fraud, I do not place any reliance on the documents he has produced to support his case, and therefore do not accept that they provide support for the [first respondent’s] claim of the existence of a blood feud involving his family.”

11                  Another major difficulty was that the documents did nothing to deal with the major gap in the first respondent’s case, namely that it was not satisfied a blood feud existed.  As previously indicated, (see [9] above) the Tribunal noted that the statutory declaration concerning the break-in to the respondents’ flat in Germany did not assist in filling this gap. The Tribunal commented that only one of the documents referred to the existence of the blood feud. This was the statement that was alleged to have come from the National Commission for Reconciliation and which stated that members of the Shatku family had been involved in a blood feud since 1951, and that attempts have been made at  reconciliation had been unsuccessful.  The Tribunal was concerned about the authenticity of this document observing that:

“The [first respondent] when questioned about the reconciliation process appeared to be very vague about it, and this seems at odds with a feud which has apparently been attempted to be resolved since 1991. In any event, I do not place any weight on this document, given the extent and sophistication of document fraud in Albania…”

The decision of the primary judge

12                  In their application to the Court for review of the Tribunal’s decision, the respondents identified three grounds, of review:

·        the Tribunal erred in law by using the wrong test in assessing evidence;

·        the Tribunal’s decision was affected by bias; and

·        that there was no evidence to justify the making of the Tribunal’s decision.

13                  The primary judge rejected the grounds of bias and no evidence (s 476(1)(f) and s 476(1)(g) respectively).  There has been no appeal against these findings.  However, his Honour did not accept the emphasis the Tribunal put on falsification of documents in Albania. In the course of his judgment his Honour made the following comments:

“It would seem to me that the Tribunal, relying on the proliferation of forged documents in Albania, coupled with the [respondents’] use of forged passports, created an insurmountable hurdle for them.

……

I am concerned about the willingness of the Tribunal to state that it did not accept any of the documents that were produced. Perhaps the Tribunal might, having regard to the information that was before it, have a jaundiced view about the letter from the Committee of the National Commission for Reconciliation. That letter, after all, purports to identify the existence of the Shatku-Pjetri feud.  The Tribunal might also have had reason to be suspicious of the statement from the Shatku’s friends, although the reason is not apparent because one cannot overlook the fact that the event might have occurred as an act of criminality that was unrelated to a blood feud. However, there seems to have been no reason to regard the letter from the General Director of Prisons, the certificate of “Family Details”, and the letter from the Commissioner of Police as unreliable. The rejection of those last mentioned documents without explanation, other than the general state of affairs in Albania, suggests the imposition of a standard of proof beyond that which is expected of [respondents] for protection visas.”

14                  The learned primary judge held that the rejection of the first respondent’s documentary evidence for the “sole reason that it was sourced in Albania” had the effect of imposing on the respondents “an evidentiary onus that exceeds that which the authorities require”. His Honour held that this was an error of law within s 476(1)(e) of the Act and ordered that the matter should be referred to a differently constituted Tribunal for consideration in accordance with his reasons.

The appeal

15                  The notice of appeal raised only one ground, namely that the primary judge made an error of law in holding that the Tribunal had applied the wrong evidentiary onus or test in assessing the evidence presented to the Tribunal because of the Tribunal’s approach to the documents.

16                  It is clear from the Tribunal’s reasons that, quite apart from its assessment of the first respondent’s documentary evidence, it did not find the first respondent’s story convincing.  It was not satisfied that the first respondent’s family was involved in a blood feud even though it accepted that blood feuds exist in Albania.  Having formed that conclusion on the basis of the first respondent’s own account, the Tribunal was not, on examination of the documents, able to find anything in them that would address its concern even if it assumed that the documents were genuine. The Tribunal’s comment about the document concerning the grandfather’s time in prison (see [6] above) is an instance.  On that basis it would have made no difference if the Tribunal had accepted the documents as genuine.

17                  Only one of the documents presented was relevant to the claim made by the first respondent, namely that concerning the alleged reconciliation attempts.  The first respondent’s account of the attempted reconciliation ultimately was rejected because the first respondent was completely unable to provide any details of the reconciliation. This, as the Tribunal noted, is surprising in relation to a matter of such intimate concern to the first respondent.

18                  The Tribunal rejected the documentary evidence of the first respondent, not only for the reasons outlined in [16] and [17] but also because of the independent information it had concerning the endemic document fraud in Albania and the fact that the respondents, by their use of false passports to enter Australia (see [10] above), had demonstrated their willingness to use false documents if it suited their purposes.

19                  The matter ultimately was one of the first respondent’s credit.  This, as Ms Maharaj, counsel for the appellant, pointed out, is a matter for the Tribunal. The Tribunal is not required to accept uncritically the claims made by an applicant for a protection visa, Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451. It is not necessary for there to be rebutting evidence before the Tribunal may reject an applicant’s evidence, Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347. Ultimately the weight attributed to aspects of the first respondent’s evidence, including the documentary evidence, is a matter for the Tribunal, Minister for Immigration & Multicultural Affairs v Indatissa [2001] FCA 181 at [31] – [32].

20                   In this case the first respondent’s recent history appeared to be inconsistent with his claims. As Ms Marharaj expressed it in her written submissions:

“the Tribunal was faced with respondents who had left Germany, an apparently safe haven in which they had permission to reside, without reporting to the German authorities the break-in that supposedly caused them to flee Germany, left Germany where the male respondent had a good career and his wife employment; and from whence they travelled freely to many countries many times, including to Albania, the alleged source of their fear, both pre and post the burglary.”

21                  These facts clearly evoked scepticism on the part of the Tribunal member. Moreover, as the summary of the Tribunal’s reasons in [5] to [11] makes clear, the Tribunal had numerous other concerns about the first respondent’s claims. A fair reading of the Tribunal’s reasons shows that the Tribunal did not dismiss the documentary evidence solely because of the likelihood of Albanian documents being forged.  The Tribunal made findings that were open to it on the evidence.

Orders

22                  The appeal will be allowed and the judgment and orders of the primary judge made on 31 May 2001 set aside.  In lieu thereof it is ordered that the respondents’ applications be dismissed.  There will be an order that the respondents pay the appellant’s costs at first instance and on the appeal.

Associate:

Dated:              21 December 2001