FEDERAL COURT OF AUSTRALIA

AZABM v Minister for Immigration and Citizenship [2012] FCA 860

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s cost of the appeal.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Introduction

1    This is an appeal from an order made by the Federal Magistrates Court. On 17 January 2012 the Court made an order dismissing the appellant’s application for judicial review (that is, constitutional writs) of a decision made by the Refugee Review Tribunal on 4 February 2011.

2    The appellant is a citizen of Albania. He arrived in Australia on 1 February 2010. He travelled to Australia on a tourist visa. On 23 April 2010, he applied for a Protection (Class XA) visa. A delegate of the Minister for Immigration and Citizenship refused his application on 27 August 2010. On 22 September 2010, the appellant applied to the Tribunal for review of the delegate’s decision. The Tribunal reviewed the delegate’s decision and decided to affirm the decision not to grant the appellant a protection visa.

3    On 7 March 2011, the appellant issued his application for judicial review in the Federal Magistrates Court. The appellant claimed that the Tribunal had committed jurisdictional errors in reaching its decision. As I have said, on 17 January 2012 the Federal Magistrates Court dismissed the appellant’s application: AZABM v Minister for Immigration and Citizenship and Anor [2012] FMCA 20.

4    The appellant now appeals to this Court. He claims that the Federal Magistrates Court erred in failing to hold that the Tribunal had committed jurisdictional errors.

The appellant’s claim

5    The appellant provided a statutory declaration to the Tribunal which he had sworn on 3 December 2010. He also gave evidence before the Tribunal. A brief summary of the appellant’s claim taken from that material is as follows.

6    In 1992, the appellant’s father moved to Italy for work. In March 1994, the appellant moved to Italy. In March 1996, the appellant and his family received legal residence status in Italy.

7    On 25 October 1998, the appellant married and there are three children of that marriage.

8    In 2001, the appellant established a business in Italy involving construction. He made a good income from the business and, in 2002, he decided to invest in Albania. The appellant’s case was that it was impossible to survive in business in Albania without being allied to a political party.

9    In 2005, the appellant joined the Demo Christian Party. In the same year he bought a block of land in Shengjin, Albania. He had previously purchased a block of land in Shengjin in 1998, but this block of land had been taken away from him in 2007 by a member of the Democratic Party who he identified in his evidence. At all events, in relation to the block of land which the appellant purchased in 2005, he obtained permission to construct a large building on the land. This is referred to as the apartment block.

10    In 2007, the Democratic Party and the Demo Christian Party split, having previously been aligned. The appellant was living in Italy at the time and he was not involved in the conflict. His involvement with the Demo Christian Party was financial and he donated approximately €3000 to €5000 a year to that party.

11    In 2007, the appellant started having difficulties in obtaining approvals with respect to the apartment block. His case was that he was threatened by prominent people in the local community. In 2009, he was again threatened by these same people while he was in the apartment block.

12    In November 2009, two people came to Italy and threatened him. They asked him to sign over the building to a person he identified in his evidence.

13    The appellant’s case was that his car was damaged twice in Italy, once in 2008 and a second time in 2009. He said that he received approximately 20 to 30 threatening phone calls in Italy. He said that he received three letters about the building, two in 2008 and one, which was given to his mother, in 2010.

14    The Tribunal did not accept a number of aspects of the appellant’s claim. While it accepted that the appellant reported the vandalism of his car to police, it did not accept that the vandalism of itself was evidence that he was targeted by the two persons he identified. The Tribunal did not accept that the appellant’s life was threatened at the building site or in Italy, and it did not accept that he had received threats of serious harm by telephone or in writing.

The Federal Magistrate’s reasons

15    The Tribunal found that the appellant did not have a subjective fear of persecution. It made that finding having regard to a number of matters, including a finding that the appellant could have travelled to another European country to seek asylum, but did not do so. The Tribunal said that it did not accept the appellant’s claim that his permanent residency in Italy prevented him from doing so. The first ground of challenge to the Tribunal’s decision in the Federal Magistrates Court was described by that Court as an assertion that the Tribunal had arbitrarily decided that the appellant’s statement that his permanent residency in Italy prevented him from applying for asylum to another European country was false. That approach, it was said, involved jurisdictional error.

16    The Tribunal found that the conduct it found had occurred did not amount to serious harm within subs 91R(1) of the Migration Act 1958 (Cth) (“the Act”) and therefore, by reason of that subsection, was not persecution within the Refugees Convention as amended by the Refugees Protocol. The second ground of challenge to the Tribunal’s decision in the Federal Magistrates Court related to that conclusion.

17    The Federal Magistrate said that he did not need to decide whether these two grounds of challenge were made out and he did not do so. He said that there were other grounds for the Tribunal’s decision which meant that the challenge to the decision on the ground of jurisdictional error must, in any event, fail. He said that there were two findings of the Tribunal which were not challenged and that each of them was sufficient “to deny the applicant a Protection visa” (at [33]).

18    First, the Federal Magistrate said that the Tribunal had not accepted that the appellant had been targeted because of his political associations, and he noted that “political opinion” was the only reason put forward by the appellant for his alleged persecution. Secondly, he said that the Tribunal had concluded that it could not be satisfied that the appellant had a genuine fear of persecution.

19    The Federal Magistrate expressed his conclusions as follows (at [36] and [37]):

Each of these additional findings is sufficient to dispose of the application. Any error in the Tribunal’s consideration of the genuineness of the applicant’s fear of persecution (ground 1) or whether the conduct complained of amounted to persecution (ground 2) could not have affected the Tribunal’s ultimate decision because there were ‘alternative streams of reasoning’ each of which was sufficient to justify its decision and each of which were not affected by jurisdictional error.

No matter what conclusion this Court might come to in relation to the two remaining grounds that the application now relies on, the Tribunal’s decision can stand independently of decisions on those grounds. In these circumstances, I do not consider it necessary to decide these matters. The application should be dismissed.

Issues on the Appeal

20    The appellant advances three grounds of appeal.

Ground 1

21    The first ground of appeal is as follows:

The learned federal magistrate erred in holding that, by reason of the Tribunal’s findings, there were ‘alternative streams of reasoning’ each of which was sufficient to justify its decision and each of which were not affected by jurisdictional error.

22    The Federal Magistrate’s approach was to say that there were ‘alternative streams of reasoning’ each of which was sufficient to justify the Tribunal’s decision and each of which was not affected by jurisdictional error. The appellant submits that that was not the correct approach.

23    The appellant submits that the Federal Magistrates Court erred in not determining the two grounds of challenge he advanced. He submits that if one or both of those grounds was made out then the Tribunal had committed a jurisdictional error or errors and the Tribunal’s decision was no decision at all. He referred to Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. The correct approach was then to determine if the decision-maker was bound to refuse the application irrespective of a finding of jurisdictional error. If that was the case then relief may be refused as a matter of discretion (Re Refugee Review Tribunal; Ex parte AALA (2000) 204 CLR 82 at 108-109 [57]-[58] per Gaudron and Gummow JJ). The appellant submits that relief would only be refused if it was quite clear that a rehearing or reconsideration would be futile.

24    The first respondent did not seek to support the Federal Magistrate’s decision on the basis of the second alternative stream of reasoning. The second alternative stream of reasoning was based on the matters in paragraph 43 of the Tribunal’s reasons. That paragraph is in the following terms:

The Tribunal is not satisfied the applicant in fact has a genuine fear. The applicant claims the threats began in late 2007. However, since that time he has continued to travel to Albania and the village of Shengjin, which is inconsistent with a genuine fear of harm or the existence of real threats. He travelled to the United States of America in 2008 without seeking asylum. He could have travelled to another European country to seek asylum, but did not do so. The Tribunal does not accept the applicant’s claim that his permanent residency in Italy prevents him from doing so. He has left his family in the family home in Italy, which he claims is known to his persecutors. The Tribunal finds this is inconsistent with him holding any fear for his family. The Tribunal gives weight to the applicant’s delay in coming to Australia, twelve months after being granted a visa, as evidence he did not have a genuine fear of serious harm.

25    The first respondent made the concession he did because the second alternative stream of reasoning is related to the question of whether the appellant had a genuine fear of persecution. It is therefore related to the appellant’s first ground of challenge to the Tribunal’s decision in the Federal Magistrates Court, and is not, therefore, an alternative stream of reasoning.

26    The first respondent does seek to support the Federal Magistrate’s approach in relation to the first alternative stream of reasoning. That first alternative stream of reasoning is based on the Tribunal’s finding that the appellant was not targeted because of his political associations. In paragraph 41 of its reasons, the Tribunal said the following:

The applicant claims he was targeted because of his association with the Demo Christian Party, who are now out of power. He claims that without political allies in Shengjin it is difficult for him to do business there. Yet the Tribunal notes the applicant continues to own and collect rent from two properties in Shengjin which have not been taken or threatened in any way. The Tribunal does not accept the applicant was targeted because of his political associations, for if he was then logically all of his property and interests in Shengjin would have been threatened. The Tribunal does not accept his other properties have been targeted because one is rented by a foreign bank. The Tribunal is prepared to accept that once approval for his apartment is refused, for whatever reason, it may have been difficult for him to complain to the local authorities and higher authorities given his political affiliations. The Tribunal accepts, based on the country information referred to above, that a level of corruption exists in Albania and accepts political affiliations may influence a person’s dealings with the authorities.

27    The first respondent submits that the finding that any persecution was not for a Convention reason was decisive of the appellant’s application. He submits that it was appropriate for the Federal Magistrate to reason in the way in which he did. As I understood it, he submits that, in the circumstances of this case, it does not matter whether the reasoning is put on the basis of “alternative streams of reasoning” or on the basis that the Tribunal was bound to refuse the application irrespective of any jurisdictional error in relation to any other element of the appellant’s claim.

28    The first respondent referred to the observations of Allsop J in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 at 265 ([232], [233]):

Mr Prince submitted that the discretionary reasons which could lead to writs not issuing did not include the existence of an entirely separate unimpeached basis for concluding that Australia did not have protection obligations. I do not agree. What the majority in SAAP stated was that one did not engage in an evaluative analysis of the triviality or seriousness of the failure to observe the statutory requirements. The same was said by Gaudron and Gummow JJ in Aala. However, Aala and SAAP leave open (see especially [58]-[59] in Aala) the basis to refuse relief if it can be shown that grant of relief would lack utility. The examples given by Gaudron and Gummow JJ in Aala at [58] were:

(a)    where the decision-maker was bound by the governing statute to refuse;

(b)    where the submissions could only have been answered, as a matter of law, against the person denied the opportunity of making them; and

(c)    if the decision under review has no legal effect.

If it can be shown that there was a basis for the Tribunal decision which can be seen to be entirely independent of the failure to follow s 424A, in my view, that is sufficiently analogous to the first of the alternatives referred to in [58] of Aala to warrant withholding of relief.

29    I do not think that any more favourable approach to the appellant is open and I proceed on the basis that the approach taken by Allsop J is correct.

30    The appellant submits that a different conclusion by the Tribunal on one or both of the two grounds of challenge to the Tribunal’s decision in the Federal Magistrates Court may have affected the Tribunal’s conclusion that he was targeted because of his political associations. I do not accept that submission. It seems to me that there was a basis for the Tribunal’s conclusion in paragraph 41 of its reasons (set out in [31] above) which is unaffected by its conclusions as to whether the appellant had a genuine fear of persecution and whether the conduct amounted to serious harm. That basis is set out in paragraph 41. In those circumstances, there was a basis for the Tribunal’s decision which was entirely independent of those matters, and the Federal Magistrate was correct to refuse the appellant’s application for judicial review. The appeal must be dismissed.

31    In case I am wrong, I turn to consider the second and third grounds of appeal which embody the two grounds of challenge to the Tribunal’s decision in the Federal Magistrates Court.

Ground 2

32    The second ground of appeal is as follows:

The learned Federal Magistrate erred in not holding that the Tribunal had committed jurisdictional error by reason that its determination that the appellant did not have a subjective fear of persecution was not based on a finding or inference of fact grounded upon probative material and logical grounds, in that inter alia it was based on an erroneous understanding of European community law.

33    The Tribunal’s reasoning in relation to this matter is set out in paragraph 43 of its reasons. That paragraph is set out above (at [24]).

34    The particular matter, that is, travelling to another European country to seek asylum, appears to have arisen because of evidence given by the appellant before the Tribunal. The Tribunal summarised the evidence in the following way:

The Tribunal asked the applicant why his wife and children remained in their home in Italy if he feared for their safety. The applicant said that they cannot just go to another place. The children are all in school. The Tribunal asked if they considered seeking asylum in another European country. The applicant said that they can travel to other European countries as visitors. He too has permission to travel around Europe, but because he has that permission he cannot apply for residence elsewhere.

35    It is not entirely clear what the Tribunal had in mind when it said that the appellant could have travelled to another European country to seek asylum but did not do so. The Tribunal said that it did not accept the applicant’s claim that his permanent residency in Italy prevented him from doing so. As I understand it, the Tribunal did not have evidence before it on European Community law in relation to the appellant’s ability to travel to another European country and seek asylum. It may be that the Tribunal had in mind that it was open to the appellant as a matter of fact to travel to another European country and to make an application for asylum.

36    At all events, the appellant’s submission is that the Tribunal’s conclusion is irrational or illogical.

37    In relation to this ground of appeal, both parties referred to the decision of the High Court in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611. The appellant referred to the reasons of Gummow ACJ and Kiefel J at 624-625 [37]-[42] and Crennan and Bell JJ at 639 [102]-[105], 644-648 [121]-[131].

38    Although there is force in the appellant’s submission that, if the Tribunal was saying that the appellant could, as a matter of European Community law, obtain asylum in another European country, that conclusion was not supported by a mere non-acceptance of his claim that his permanent residency in Italy prevented him from doing so. However, I think the first respondent’s submission to the effect that the conclusion that the appellant did not have a genuine fear of persecution was not irrational or illogical is correct. There were five reasons given by the Tribunal in support of its conclusion that the appellant did not have a genuine fear of persecution. Even if one of those reasons lacked substance, it is not possible to say, having regard to the other reasons, that the Tribunal’s conclusion was irrational or illogical.

39    I reject the second ground of appeal.

Ground 3

40    The third ground of appeal is as follows:

The learned federal magistrate erred in not holding that the Tribunal had either misconstrued the meaning of ‘serious harm’ in subs. 91R(2) of the Migration Act 1958 (Cth) or failed to make a finding in respect of the appellant’s claims and that it had thereby constructively failed to exercise its jurisdiction.

Subsections 91R(1) and (2) are in the following terms:

(1)     For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:

(a)     that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and

(b)     the persecution involves serious harm to the person; and

(c)    the persecution involves systematic and discriminatory conduct.

(2)     Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)     a threat to the person’s life or liberty;

(b)     significant physical harassment of the person;

(c)     significant physical ill-treatment of the person;

(d)     significant economic hardship that threatens the person’s capacity to subsist;

(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

41    In paragraph 45 of its reasons, the Tribunal said:

The Tribunal has considered whether the disruption to his building work in Shengjin amounts to serious harm, but is not satisfied that it does, given the applicant’s financial position and ability to continue to support his family.

42    The “disruption to his building work” referred to in this paragraph is a reference to the findings made by the Tribunal in the last two sentences of paragraph 41 of its reasons (see [26] above). The appellant referred to evidence he had given before the Tribunal and which the Tribunal summarised in the following way:

The Tribunal asked the applicant why he did not sign over the building if he believed his life was in danger. The applicant said all his earnings were in the apartments so he could not sign them over. He tried to negotiate with them to give him more time. The Tribunal asked why he would return to the apartments in Shengjin if he felt threatened. He said he did not go so often but would return to Albania for family reasons and would only stay a few days. The Tribunal put to the applicant the fact that he returned at all might suggest he did not have a genuine subjective fear of being harmed. He said if he did not have a genuine fear he would not have left everything to come to Australia.

43    The appellant submits that a conclusion that all his earnings were in the apartment block could support a conclusion that the disruption to his building work in Shengjin amounts to serious harm. The appellant submits that the Tribunal has either misconstrued the meaning of serious harm in subss 91R(1) and (2) of the Act or has not dealt with the evidence which could lead to a conclusion of serious harm. I do not accept this submission. It is clear, in my opinion, from the documents and the evidence that it was not the appellant’s case that all his money was tied up in the apartment block. I refer to his application for a protection visa and a letter written on his behalf dated 16 August 2010. In addition, the statutory declaration which he swore on 3 December 2010 and which was submitted to the Tribunal provides ample evidence to the effect that his case was that he had moneys and property other than the apartment block. That was also his evidence before the Tribunal as can be seen from the summary of his evidence in paragraph 31 of the Tribunal’s reasons. I do not think that the Tribunal misconstrued the definition of serious harm or overlooked an aspect of the appellant’s case.

44    I reject the third ground of appeal.

Conclusion

45    The appellant’s appeal must be dismissed. The appellant must pay the first respondent his costs of the appeal.

Associate:

Dated:    17 August 2012