FEDERAL COURT OF AUSTRALIA

SVRB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1884

MIGRATION – application for review of a decision of the Refugee Review Tribunal (RRT) – whether RRT erred in finding that the first applicant did not have a well-founded fear of persecution as a result of her belonging to a particular social group – whether RRT erred in finding that the level of state protection was adequate – application dismissed.

Migration Act 1958 (Cth), s 91S

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

Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 cited

Applicant S v Minister for Immigration & Multicultural Affairs (2004) 206 ALR 242 cited

Applicants A169 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 727 cited

SZBBE v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 264 cited

SVRB and SVSB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

SAD 64 of 2005

LANDER J

22 DECEMBER 2005

ADELAIDE

THE COURT ORDERS THAT:

1.         The applicants’ application be dismissed.

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

REASONS FOR JUDGMENT

1                     This is an application for review of a decision of the Refugee Review Tribunal (RRT) made on 31 January 2005 and handed down on 18 February 2005 affirming a decision not to grant protection visas to the two applicants.

2                     The applicants are husband (second applicant) and wife (first applicant) who are citizens of Albania.  They married, so it was claimed, in 1988.  They have two children.  One of their children, a 12 year old boy arrived in Australia on 23 January 2004 (about one year after his parents).  His visa application is the subject of another matter before me, SYQB v Minister for Immigration and Multicultural and Indigenous Affairs, which has been adjourned pending the outcome of this application.  It is not clear if the second child is in Australia or Albania but nothing turns on that.

3                     The applicants arrived in Australia on 25 December 2002.  On 10 February 2003 they lodged applications for protection (class XA) visas with the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA).

4                     On 23 July 2003 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (the Minister) refused to grant protection (class XA) visas. The applicants applied to the RRT for a review of the delegate’s decision and on 26 February 2004 the RRT affirmed the decision of the delegate.

5                     The applicants applied to this Court for a review of the decision of the RRT.  On 9 September 2004 I made orders quashing the decision of the RRT made on 26 February 2004 and remitting the matter to the RRT, differently constituted, for hearing and determination according to law.

6                     On 31 January 2005 the RRT, constituted by Mr Peter Katsambanis affirmed the decision of the delegate. The applicants seek a review of that decision.

7                     The first and second applicants are Roman Catholics who, whilst living in Albania, for reasons which I will explain, lived separately and apart.

8                     From June 1996 to June 2002 the first applicant was employed as Finance Officer for the Bushat Commune (which is like a Local Council in Australia). She lived in a predominantly Catholic town, Beltoje, approximately 10 kilometres from the centre of Catholicism in Albania, Shkoda.  The first applicant said that there was no police station in Beltoje.  The nearest police station was in Shkoda.

9                     The first applicant had the duty of collecting the rates and taxes for the town of Kosmac which had a population of about 2,000, of which approximately 95% were Muslim. The rest of the population were Roman Catholic. If a ratepayer neglected to pay their rates, the first applicant was obliged to go to the ratepayer’s house and make a demand in person.  If the ratepayer still neglected to pay, she sent their names to the taxation office who, in turn, would send taxation officers to their houses to confiscate items of value to cover the outstanding rates.

10                  After 1993 the second applicant lived in Vermosh, about 100 kilometres from Shkoda which the first applicant said was approximately three hours drive away from her.  They lived apart because it was claimed the second applicant was involved in a blood feud.  Apparently the blood feud began in the 1960s and concerned the confiscation of land.  In 1993 the second applicant’s father killed a person in retaliation for that person having killed the father’s uncle many years ago.  The second applicant did not identify any convention related basis for the dispute to the RRT. 

11                  The first applicant claimed that by reason of her separation from her husband she belonged to a particular social group or a class of persons characterised as a woman without adult male protection in Albania.

12                  The RRT found that the first applicant was the subject of three armed assaults between October 2001 and June 2002. 

13                  The first attack occurred in October 2001. The first applicant was working alone late in her office when five armed men approached her in an angry manner. They were from Kosmac and told her that she could not make them do what the government wanted. They told her that because she was a Catholic she could not tell them what to do and that she could not continue her work. The first applicant claimed that the men would have known she was Catholic because she wore a gold cross on a chain around her neck and she lived in a Catholic town. She claimed the men told her all Albanian women should be Muslim, and stay at home with their faces hidden. The men hit her several times, pushed her to the floor and then left. The first applicant called the police, who arrived two hours later, long after the men had left the office. The applicant claimed the police told her they would try to find the people responsible but they would not be able to do much because the men were armed. She also claimed that the police told her to look after herself because they could not really help her. She claimed that the police told her that the same men had done other things and were like gangsters.

14                  The applicant stated that she told her ‘boss’, who was also a Roman Catholic, about the incident and claimed that he was also scared of these men and could only suggest that she try to get the police to help her.

15                  The second attack took place in January 2002. The first applicant was walking home alone from work when she was confronted by the same five men who attacked her in October 2001. She claimed that by then she knew that these men were Islamic fundamentalists who were aggressive towards Catholics. She claimed that the men accused her of getting the  taxation authorities to single them out for particular treatment. They swore at her and abused her. She claimed that they told her to stay at home and wear a veil and that as a Catholic she could not work in their town. The first applicant said that the men were carrying Kalashnikov rifles with bayonets, and they fired their rifles to either side of her. She claimed that they beat her and kicked her and she fell unconscious. Bystanders took her to hospital where a bayonet cut on her leg was stitched.  She said that she was told by bystanders that whilst she was unconscious her attackers had ripped off her gold cross and thrown it on top of her.  She reported the incident to police who, according to the first applicant, said they could not help her and that they would not risk their lives for the pay they received.

16                  The third attack took place on 5 June 2002. The first applicant was at home after work and noticed five men approaching her house. She described the guns they were carrying as ranging from big (Kalashnikovs) to smaller. She said the men shouted at her that she was a Catholic and they were going to kill her family. They opened fire on her house and then she heard explosions that, according to her, lasted two or three minutes. The first applicant claimed that she did not bother to tell the police what had happened because they were unable to give her or her family effective protection from the Muslim men. She claimed the police were poorly paid, poorly trained and had no discipline so they were not prepared to risk their lives confronting criminals.

17                  The first applicant said that after the third attack she did not return to work but stayed with relatives and did not go out. She said she did not return to her home again and decided she had to leave Albania or she would be killed.

18                  The first applicant claimed that she feared persecution because of her religion and race and that police were unable or unwilling to provide effective protection to her. In a statement received by the RRT on 23 December 2004 the applicant stated that she feared that if she returned to Albania she would suffer persecution because of her membership of the following particular social groups:

·                Roman Catholics;

·                Women in Albania living alone without male protection or women alone in Albania without an adult male relative to protect them;

·                Employees, or former employees, of local councils who are (or were) responsible for forwarding the bills of councils and advising taxation authorities to follow up on non-payment of bills.

19                  The second applicant claimed he feared persecution if returned to Albania, not merely as a consequence of the blood feud, but because he would be in danger from the Muslim group threatening his wife. He claimed that he feared persecution because his religion and race and because he belonged to a particular social group, being his wife’s family. He stated the police were unable or unwilling to protect him.

20                  The RRT found that the applicants were nationals of Albania and assessed the applicants’ claim against Albania as their country of nationality.  The RRT accepted that there was a long-standing tradition of blood feuds in Albania and, in particular, in the northern parts of that country.  It accepted that the second applicant’s family had been involved in a blood feud with another Albanian family.  However, it found that, notwithstanding opportunities proffered to the second applicant, he did not advance any reason to indicate that the blood feud in which he and his family were involved arose out of any Convention related reason.

21                  In relation to the second applicant, the RRT said:

‘Although the Tribunal is satisfied that in the Albanian context the applicant’s family can be considered to be a particular social group under the Convention, I find that the essential and significant reason that the Gege Ejelli family seek to harm the applicant husband, or any other member of the applicant husband’s family, is revenge for the killing of a family member by the applicant husband’s father.  In this context, revenge is not a reason for harm which comes under the Refugees Convention unless it can be linked to a Convention reason.  Considering the applicant’s own position I am unable to find any link to a Convention reason.’

22                  The RRT applied s 91S of the Migration Act 1958 (Cth) insofar as it relates to blood feuds, which it said prevented the second applicant’s membership of his family being used as a vehicle to bring him within the scope of the Convention because the persecution or fear of persecution of the family members was motivated by a non-Convention reason.

23                  In summary, it found that as the second applicant had not advanced a Convention related reason, no such finding could be made.  It found that if the second applicant were to return to Albania he would not be subject to persecution for a Convention related reason.

24                  The second applicant has not challenged that decision.  His claim, his counsel said, ‘rests entirely on the wife’s claim’.  It follows, therefore, that the second applicant’s history is only relevant to explain why the applicants lived separately and apart.

25                  The RRT accepted that the three attacks described by the first applicant had occurred, but found that they were not motivated by religious reasons. Rather, the RRT found that the attacks were motivated exclusively by the desire of the attackers to avoid the payment of taxes to the local authority, and their anger at the first applicant for having reported them for failure to pay.

26                  The RRT also found that the first applicant was a member of the particular social group defined as ‘women in Albania living alone without male protection’, or ‘women alone in Albania without a male to protect them’. However, the RRT found there was no evidence that the applicant wife would be at risk of any harm because of her membership of these particular social groups.

27                  The RRT found that the first applicant had not identified the person or persons who she feared would harm her for membership of that particular group or why they would harm her.  In respect of that, the RRT said:

‘In fact, at the second Tribunal hearing the applicants’ adviser informed the Tribunal that she had found no evidence to indicate that this particular social group was in fact at risk in Albania today or in the reasonably foreseeable future.’

28                  In relation to the claim for fear of persecution on the basis of membership of the particular group of employees, or former employees, of local councils who are (or were) responsible for forwarding the bills of councils and advising taxation authorities to follow up on non-payment of bills, the RRT found:

‘…there is no evidence available, apart from the assertions of the applicant, that such a group of people is identifiable as a social group in Albania today. …the applicant is … claiming she is… a municipal employee who routinely follows up the non-payment of bills owing to the municipality and reports non-payers to taxation authorities. It is accepted that there are many other municipal employees across many council in Albania who perform similar duties in the course of their employment. However there is  no evidence available to indicate that such individuals possess any attributes or characteristics that would distinguish them from Albania society at large, in order to satisfy the test established in Applicant S for the existence of a particular social group. I therefore find that there is no particular social group being “employees or former employees of local councils who were responsible for forwarding the bills of councils and advising taxation authorities to follow up non-payment of bills” in Albanian society today.’

29                  The RRT found that it was not enough for the applicant to establish that she was a member of a particular social group or that she had a well-founded fear of persecution.  The applicant, so the RRT found, needed also to establish that she feared persecution because of her membership of the particular social group.

30                  For all of those reasons, both applicants’ proceedings for review before the RRT failed.

31                  On this application the applicants contended that the RRT had fallen into error in failing to find that the first applicant had a well-founded fear of persecution as a result of her belonging to each of the particular social groups referred to above.

32                  In the case of the claim to have a well-founded fear of persecution in respect of religion, it was contended that the RRT had failed to perform the tests prescribed by the Full Court in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 in that it failed to test the evidence for a well-founded fear of persecution on the part of the applicant.

33                  It was argued that the RRT had merely found that the three instances of attack were attributable to anger attacks in position and collection but had failed to explore whether the evidence was enough for the applicant to have established that she had a well-founded fear of persecution at the hands of Muslim extremists for reason of her Catholicism.

34                  In my opinion, that argument must be rejected.  Once the RRT found that the particular attacks which the first applicant relied upon to establish objectively a well-founded fear of persecution were not motivated by her religion, then there was no evidence left upon which a finding could be made that she had a well-founded fear of persecution for reason of her Catholicism.

35                  The first applicant contended that the RRT had fallen into error in finding that she had not identified who she feared would harm her by reason of her membership of the social group, women alone in Albania.  It was put that the RRT had failed to enquire into her claims which she had articulated arose because her assailants saw her as a weak person because she had nobody to support her and no relatives.

36                  I think the contention overlooks the essence of the RRT’s findings.  The RRT found that the first applicant was attacked for a particular reason.  That reason was not because of membership of the particular social group, women in Albania.  She was attacked on the finding of the RRT because her assailants desired to avoid payment of taxes to the local authority and because they were angry that she had reported them to those authorities.

37                  In making that finding, the RRT rejected the first applicant’s contention that she was assaulted or attacked because of her membership of that particular social group, women in Albania.  It follows that the second argument must also be rejected.

38                  Lastly, it was put that the RRT was wrong in finding that there was not a particular social group of local tax officials.  In support of that contention, it was said that local tax collectors might not be immediately distinguishable from the remainder of Albanian society but the persecution of one of that particular social group for reason of membership of that group would match the analysis by Justice McHugh in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 264 (‘Applicant A’).  It was put by the first applicant’s counsel that the first applicant came within the type of class which McHugh J described by referring to ‘left-handed men’.

39                  In Applicant S v Minister for Immigration & Multicultural Affairs (2004) 206 ALR 242 at [31], the majority said of that example:

‘Left-handed men share a common attribute (that is, they are left-handed), but, ordinarily, there is nothing to separate or distinguish them from the rest of the community.  However, to expand on his Honour’s example, if the community’s ruling authority were to legislate in such a way that resulted in discrimination against left-handed men, over time the discriminatory treatment of this group might be absorbed into the social consciousness of the community.  In these circumstances it might be correct to conclude that the combination of legal and social factors (or norms) prevalent in the community indicate that left-handed men form a particular social group distinguishable from the rest of the community.’

40                  In my view, the first applicant’s third contention must also be rejected.  Whether or not there is a particular social group of the kind contended for by the first applicant is a matter of fact to be determined on the evidence available to the RRT.

41                  There was no evidence of any attacks on tax officials, apart from the attacks upon the first applicant.  If there had been evidence of that kind, it might have been possible for the RRT to reason that tax officials were discriminated against or liable to persecution by reason of their occupation.

42                  The first applicant on the RRT’s own findings was not attacked because of her membership of a social group.  She was attacked for the reasons found by the RRT.  It would be wrong to find that simply because she was attacked for the reasons given by the RRT that she therefore formed part of the particular social group claimed.  That would make the attack the defining event identifying the particular social group.  That would be contrary, in my opinion, to the dicta of McHugh J in Applicant A (1997) 190 CLR 225 at 264.

43                  It was also put that the RRT fell into error because it found that the Albanian government was willing to act in defence of the applicant.

44                  Because the first applicant could not establish that she had a well-founded fear of persecution for a Convention reason, which is a finding, in my opinion, which must stand, this matter does not strictly need to be addressed.

45                  However, in case this matter needs to be reconsidered elsewhere, I should also deal with that argument.

46                  The respondent accepted that if Albania was unable to protect the first applicant, the first applicant would thereby establish that aspect of the definition of ‘refugee’.

47                  However, it was contended by the respondent that there was no evidence before the RRT to establish that the effectiveness of Albanian state protection fell below that required by international standards.  The respondent relied upon Applicants A169 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 727 and contended that some evidence of that failure was required because the fact cannot be presumed.

48                  In my opinion, the respondent’s contention must be accepted and the RRT’s decision in that other respect also confirmed.  In SZBBE v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 264 at [46], Jacobson J said:

‘It was not suggested either before the Federal Magistrate or on appeal that there was evidence put before the RRT of a failure to adhere to international standards which the RRT should have taken into account.  As Heerey J said in MZ RAJ at [26], the ratio of S152 does not include the proposition that there will be jurisdictional error unless the RRT identifies and specifies the content of “international standards” of protection and matches the law enforcement machinery of the state against those standards.  It is for an applicant to put forward international standards of protection with which the state failed to comply.’

49                  The applicant did not put forward any evidence which identified the international standards of protection with which Albania had failed to comply.

50                  The RRT in this case concluded, on the evidence before it, that the level of state protection was in fact adequate and that adequate state protection would not be denied to the first applicant.

51                  In my opinion, those findings were open on the evidence.  There was no evidence before the RRT that the level of protection fell below international standards.

52                  For that other reason, the RRT was right to affirm the delegate’s decision.

53                  The applicants’ application to this Court must be dismissed.

Associate:

Dated:              22 December 2005