FEDERAL COURT OF AUSTRALIA

SXPB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1110

MIGRATION – appeal from decision of Refugee Review Tribunal – whether RRT made a jurisdictional error in determining that the second applicant could be afforded an acceptable level of protection by the Albanian government.

Migration Act 1958 (Cth)

Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 cited

SXPB & SXQB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS & REFUGEE REVIEW TRIBUNAL

SAD 271 of 2004

LANDER J

19 AUGUST 2005

ADELAIDE

THE COURT ORDERS THAT:

1.         The Refugee Review Tribunal be joined as the second respondent to these proceedings.

2.         The application be dismissed.

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

REASONS FOR JUDGMENT

1                     There are four applicants to this application, a mother, two daughters and a son.  They are citizens of Albania.  The first applicant (SXPB) is the mother who was born on 26 June 1972.  The second applicant (SXQB) is the eldest daughter who was born on 16 May 1992.  The other two children were born in 1994 and 1999.

2                     The applicants arrived in Australia on 24 April 2002.  Some 18 months later, on 23 October 2003, they lodged an application for Protection (Class XA) visas under the Migration Act 1958 (Cth) (the Act).

3                     On 16 January 2004 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused to grant Protection (Class XA) visas.

4                     On 24 February 2004 the applicants applied to the Refugee Review Tribunal (RRT) for a review of that decision.

5                     On 19 November 2004 the RRT published its reasons in which it affirmed the Minister’s delegate’s decision not to grant protection visas.  The RRT considered the first and second applicants’ applications separately.  It reached its decision affirming the Minister’s delegate’s decision not to grant the first and second applicants a visa for different reasons.  SXPB did not argue that the RRT’s decision, insofar as it dismissed her application for review, was wrong.  The argument seeking relief in this Court was limited to the decision as it impacted upon SXQB.

6                     On 15 December 2004 the applicants applied to this Court, pursuant to s 39B of the Judiciary Act 1903 (Cth) for the following relief:

‘1.        A declaration that the decision of the Refugee Review Tribunal made on 27 October 2004 and handed down on 19 November 2004 is invalid and of no effect.

2.         A declaration that [SXQB], the second named applicant, is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol, and that the matter be reconsidered by the First Respondent or her delegate.

3.         Costs.’

7                     Clearly enough, SXPB would not be entitled to the relief sought in the absence of the RRT as a party to the proceedings.  If SXQB were entitled to any relief it would be because she had established that the RRT had committed jurisdictional error in that it had failed to accord her procedural fairness.  If that were established, SXQB would be entitled to an order quashing the decision of the RRT and a further order directing the RRT to conduct a further review of the decision of the delegate of the Minister.

8                     It follows, therefore, that if SXQB were entitled to the relief to which I have referred, it would be necessary to join the RRT as a party to these proceedings.  I think, because the orders sought would be directed in the first instance to the RRT, that it should be joined in any event.  I will make an order joining the Refugee Review Tribunal as a party to these proceedings.

9                     It was submitted by the applicants’ counsel that if I were of the opinion that the RRT had committed jurisdictional error insofar as it concerned SXQB’s claim, I should quash the decision of the RRT but refer the matter back to the Minister or to a delegate of the Minister for further consideration.  In my opinion, that would not be appropriate.

10                  The delegate of the Minister (and therefore the Minister) has reached the conclusion that no visa should be granted to any of the applicants for the reasons given by the delegate.  The Act provides a machinery for the review of that decision.  In respect of an application for a protection visa the review is by the RRT.  It has the responsibility of reviewing the decision of the delegate in all respects, including matters of fact.  It stands in the position of the Minister for the purpose of its review.

11                  The application to this Court is for a review of that decision and, for reasons given by the High Court, it is limited to inquiry into whether the RRT has made jurisdictional error: Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476.  If it has, then the matter must be returned to the RRT so that it can perform its proper function of review in accordance with law.  It would not be appropriate to remit the matter to the Minister because the delegate of the Minister has already made a decision and it is that decision which must be reviewed by the RRT.

12                  No grounds were identified in the application for the relief sought but, in an affidavit which accompanied the application, the applicants’ solicitors identified the grounds in the following terms:

‘1.        The decision of the Refugee Review Tribunal involved jurisdictional error in that the tribunal failed to take into account a relevant consideration.

2.         The decision of the Refugee Review Tribunal involved jurisdictional error in that the tribunal failed to properly apply the law to the facts.’

13                  SXPB said that she was married to her first husband in July 1990; her first husband died in July 1999; and she remarried her present husband, KM, in May 2000.  Her husband, KM, was presently in Australia.

14                  The applicants’ case before the delegate and before the RRT was that SXPB and SXQB feared that they would be persecuted if they were to return to Albania.  Their case was that they feared that they would be kidnapped and sold into sexual slavery in Italy or Greece.  Their case was that such incidents are common in the area in which they live in Albania and no protection was available to them.

15                  The applicants’ case was that young girls and women are the targets of kidnappers in Albania.  The position is so desperate that some families do not send their daughters to school because it is unsafe for them to travel to and from school.

16                  SXPB and SXQB said that it was not economically feasible for them to relocate to another part of Albania.  The house in which they lived was empty but SXPB’s parents were tending to it.

17                  A live issue before the RRT was whether, in fact, SXPB’s claim that she was married to KM was genuine or whether she was married to another man, CS, who was still in Albania and who could assist in her protection.

18                  Photographs were produced at the hearing of SXPB and her children in the company of CS who it was suspected was her husband in Albania.  She denied that she was married to that man.

19                  Another issue before the RRT was whether if in fact she was married to KM, and she had to return to Albania, why KM could not return with her and give her the protection she needed in Albania.

20                  KM gave evidence at the RRT.  It was put to him during his evidence that he was in fact SXPB’s brother, which he denied.  It was put to him that SXPB’s husband was, in fact, CS and that CS had submitted a family certificate to the Department which indicated that SXPB and KM were brother and sister, not husband and wife.

21                  Both SXPB and KM refused to submit to blood tests which would ascertain their DNA and which could establish whether they were brother and sister.

22                  After that hearing, the RRT wrote to the applicants pursuant to s 424A of the Act.  They provided the applicants with translated documents submitted by CS which indicated that SXPB was married to CS.  SXPB replied to that letter claiming that the documents and photographs which had been sent to the RRT by CS were all false.

23                  The member which then constituted the RRT became unavailable to continue the inquiry.

24                  On 18 August 2004 the RRT wrote to the applicants advising that the RRT had reconstituted itself with a second member: s 422 of the Act.  On 6 September 2004 the applicants’ adviser wrote to the RRT stating that SXPB and KM wanted the opportunity to attend another hearing in the presence of the second member before any decision was made on the applicants’ application for review.

25                  The RRT agreed to that request and SXPB gave evidence again.  She told the RRT that the evidence contained in the letters presented by CS was a lie.  She again claimed that she was currently married to KM.  She had no knowledge who CS was.  It was put to her that if in fact CS was her husband then she would not be without protection if she were to return to Albania.  CS could protect her and her children.  She said that CS must be a criminal.  It was also put to her that country information indicated that the Albanian authorities had taken significant steps to prevent kidnapping and trafficking in the country, and to prosecute those people who were engaged in such practices.  She claimed that the government did not have the power to protect her.

26                  KM, though present in the building, did not give evidence.   The applicants’ adviser indicated that he was too nervous to give evidence to the RRT or to come into the hearing room.

27                  The RRT found that the applicants were Albanian citizens.

28                  Contrary to her evidence, the RRT found that SXPB was never married to the man she claimed she first married, but was always married to CS.  It found, therefore, that she was not married to KM.

29                  The RRT found, however, that if SXPB and her children were to return to Albania there was a strong likelihood that they would not live together.  Therefore, the RRT found that CS would not provide SXPB with protection if she returned to Albania.  It made no finding as to whether CS would protect SXQB who, on the RRT’s findings, is the daughter of CS.  Inferentially, it found that KM would not return with the applicants because he was not married to SXPB.

30                  The RRT found that, in the context of Albanian society:

‘… a group defined as “young females in Albania without male protection” meets the elements of the test set out in Applicant S as a particular social group.  I also accept that a group defined as “young females living in the Albanian countryside without adult male protection” will also meet these elements and be considered a particular social group.’

31                  It found that country information indicated that some women in Albania are kidnapped and subjected to sexual slavery, prostitution, begging or forced labour.

32                  However, it found that the evidence did not support a further finding that the two groups to which it referred were targeted in any way by kidnappers or people traffickers.  The absence of adult male protection appeared to be irrelevant.

33                  Next, it considered whether there was a further relevant social group, namely, ‘young women in Albania’.  It found that there was and that that particular social group was targeted for kidnapping and trafficking in Albania.  The RRT found, however, that the first named applicant was not a member of the social group, ‘young women in Albania’, because she was a married woman and a mother.

34                  She would be a member, it found, of the broader social group, ‘women in Albania’ but it was not that social group which was targeted by kidnappers and people traffickers.  The group which was targeted was, as the RRT found, ‘young women in Albania’.

35                  Because she was not a member of that group the RRT found that she was not at risk of any serious harm for any Convention-related reason if she were to return to Albania.

36                  SXPB did not challenge any of the findings of fact which led to the conclusion of the RRT that she was not a member of the relevant social group.  In those circumstances, there can be no criticism of the RRT’s decision insofar as it impacted upon SXPB’s claim for review.  On the other hand, the RRT found that SXQB was a member of that particular social group, ‘young women in Albania’.  Moreover, it found that the second applicant did fear that she would suffer serious harm for a Convention reason if she were to return to Albania.

37                  It is difficult to see how the RRT could have made that finding because there was no evidence from SXQB at all before the RRT asserting that she did know of kidnapping and people trafficking in Albania, and that she did fear that she would be targeted if she were to return to Albania.

38                  SXQB did bring her own application for a Protection (Class XA) visa but she did not adduce any evidence in support of that application of any subjective fear of persecution.  She relied on her mother’s claim of persecution of the mother and SXQB.

39                  However, the Minister did not seek to challenge the finding and so it would be appropriate for this review to be conducted on the basis that the finding was properly made.

40                  The question remaining for the RRT, in those circumstances, was whether the Albanian government would be able or willing to protect the second applicant from serious harm or persecution.

41                  The RRT discussed the country information and, in particular, a US Department of State report, which was apparently compiled in June 2004, and a United Kingdom Home Office report which was compiled in April 2004.

42                  In that regard the RRT found:

‘It is clear from the above information that the Albanian government has taken significant steps to combat the problems of kidnapping and people trafficking and has co-operated with international authorities to address this issue.  I accept the applicants’ assertions that kidnapping and trafficking are still significant problems in Albania but do not accept their assertions that the government and the police are not capable of doing anything about the problems or that they are unable or unwilling to provide state protection to the applicants.  I find that the Albanian government and the police are able and willing to offer the second named applicant protection from the harm that she fears.’

43                  In making that finding, the RRT addressed a report of the US State Department to the effect that:

‘Albania does not fully comply with the minimum standards for the elimination of trafficking; however, it is making significant efforts to do so.’

44                  However, the RRT found that that report was limited to the elimination of trafficking, not to the protection available to potential and actual victims of trafficking.  In relation to those persons, it found that the level of protection offered by the Albanian authorities was not below international standards.

45                  The RRT found:

‘I note the comments in the US State Department report referred to above that “Albania does not fully comply with the minimum standards for the elimination of trafficking; however, it is making significant efforts to do so”.  I have considered whether this statement indicates that the level of state protection available in Albania is below the level of protection required by international standards.  The comments made in the US State Department report refer specifically to the elimination of trafficking, not to the protection offered to potential and actual victims of trafficking.  Given the significant steps taken by the Albanian government in conjunction with international agencies, as outlined in the country information above, to address the issue of kidnapping and people trafficking I find that the level of protection offered by the Albanian government to young women in Albania against kidnap [sic] and people trafficking is not below international standards.’

46                  In that regard, therefore, the RRT found that the applicants had failed to establish that the Albanian government was unable or unwilling to protect SXQB.  It therefore affirmed the decision of the delegate.

47                  SXQB’s counsel, on this application, argued that the finding made by the RRT that the level of protection offered by the Albanian government to young women in Albania was not below international standard, was illogical or irrational having regard to the acceptance by the RRT of the comments in the US State Department report in the same paragraph.

48                  On the other hand, the Minister argued that the RRT was addressing two different and quite separate matters.  First, it found relying upon the US State Department report that Albania had not fully complied with the minimum standards for the elimination of trafficking.  That was not, it was argued, inconsistent with the further finding that the Albanian government was in a position to provide an acceptable form of protection to young women in Albania against people trafficking.

49                  In my opinion, the Minister’s argument must be accepted.  The question before the RRT was whether the Albanian authorities were unwilling or unable to offer an acceptable level of protection to young women in Albania against kidnappers and people traffickers.  There was no doubt, on the evidence, that the Albanian government was willing to do so.  The real question was whether it was unable to do so.  The Albanian government has not been able to eliminate trafficking.  However, in saying that, that does not mean that it cannot provide an acceptable level of protection to young women in Albania from people trafficking.

50                  That was the point of distinction which the RRT was articulating in the passage to which I have referred.

51                  In my opinion, it is not illogical to say on the one hand that a government has not been able to eliminate people trafficking and, on the other hand, to say that the government is able to offer an acceptable level of protection to the target of that people smuggling.  There was evidence to support that finding.  It is not for this Court to embark upon a review of the merits.

52                  No jurisdictional error has been demonstrated in the way in which the RRT discharged its responsibilities.

53                  In my opinion, the application must be dismissed.

Associate:

Dated:              19 August 2005