FEDERAL COURT OF AUSTRALIA Vaka v The Minister for Immigration and Multicultural Affairs [2001] FCA 404 SKENDER VAKA v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS NO S 108 of 2000 O'LOUGHLIN J ADELAIDE 11 APRIL 2001 IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 108 OF 2000 BETWEEN: SKENDER VAKA APPLICANT AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: O'LOUGHLIN J DATE OF ORDER: 11 APRIL 2001 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: The application be dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 108 OF 2000 BETWEEN: SKENDER VAKA APPLICANT AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: O'LOUGHLIN J DATE: 11 APRIL 2001 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 The applicant in these proceedings is Mr Skender Vaka, a citizen of Albania. He arrived in Australia on 8 June 1996 and seventeen months later, on 14 November 1997, he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs. That application was unsuccessful; on 19 February 1998, a delegate of the Minister of Immigration and Multicultural Affairs refused to grant the protection visa. 2 Mr Vaka then applied to the Refugee Review Tribunal ("the Tribunal") for a review of the Minister's decision; once again, he was unsuccessful. On 5 September 2000 the Tribunal rejected his application and affirmed the earlier decision of the Delegate not to grant a protection visa. 3 On 11 October 2000, Mr Vaka lodged an application in this Court by which he sought a review of the Tribunal's decision. 4 Mr Vaka is a bachelor; he was born in Bajram Curri, Albania, on 20 August 1970 and is now thirty years of age. His mother, father and two sisters continue to live in Albania but he has a brother who is now living in Greece. He studied at the University in Tirana and in June 1995 or thereabouts he qualified as a veterinary surgeon. He carried on his profession thereafter until his departure to Australia in June 1996. 5 In his application for a protection visa, Mr Vaka wrote in answer to the question: "Why did you leave that country?": "I left Albania because of blood feud. With the collapse of the old regime (communist) in 1990 the blood feuds re-emerged as the traditional way of resolving disputes between families. Our family's foes, which was a family that also lived in Bajram Curri, had declared that we owed blood to them and that they were going to avenge the murder which my father had committed when he was young. After a discussion with my parents, my brother and my two sisters we agreed that both myself and my brother leave the country as the foes in the old custom will only target the male members of the family. The situation in Albania is such at present that the central government cannot control all the disputes, old and new, particularly in remote areas where I used to reside. I was specifically fearful because of the fact, according to one of our next door neighbours, our foes had acquired firearms and were preparing to shoot one of us." 6 The next question in his application was: "What do you fear may happen to you if you go back to that country? He answered: "If I were to return back to Albania, I believe that I will be murdered by our foes as I am sure they will be avenging the blood taken by our family. Even if I were to live in another part of Albania I feel I would be targeted by the foes and I would feel very unsafe and have to constantly live in hiding." 7 He added, in answer to further questions that he did not believe that he could rely on the Albanian Government to protect him "because of the powerful driving force of the tradition of blood feuds"; he said that he felt certain that his foes would murder him if he were to return to Albania. Mr Vaka had some assistance from a migration agent, a Mr Anthony L Clarke, in making his application to the Tribunal. Mr Clarke wrote to the Tribunal, by letter dated 28 February 1998, claiming that the decision of the Minister was wrong and stating that the Tribunal would be asked to review the decision. Mr Clarke's letter was countersigned by Mr Vaka. Mr Vaka also wrote the Tribunal on the same day, 28 February. It was an intelligent letter, well composed and written by someone who was totally conversant with the English language. As Mr Vaka had stated in his application for a protection visa that he could speak – but could not write – English, I infer that the letter was composed on his behalf by a third party – probably Mr Clarke. The contents of Mr Vaka's letter, referring as they did, to the question of a blood feud, were consistent with the information that had been set out in his application. He added, however, some further detail as is evident from the passage that is set out hereunder. (Lopatecki was the name of the Minister's delegate): "The main reason why Lopatecki rejected the application was his misunderstanding of the Kanun – the customary law of northern Albania. It stands for The Code of Lek Dulkagjini. Lopatecki has misinterpreted it by saying the obvious person to be killed is my father. But this is not the case. Lopatecki has not read the rest of the code. In the code it is clear that old people are not made the target for revenge. In Albania a male is considered to have three phases to his life. The first is as a boy. This boyhood continues until he is married and thus in the position to father children. Even if he does not marry until he is 30 he is still termed as being in the boy status. But according to the Kanun as soon as he reaches 12 years of age he becomes fair game to be killed for revenge as he is of workable age. The second major stage of a male is be called a man as he is able to father children, and continues until the oldest child gets married. Then the male is termed an elder. The status of elders is treated very differently in the society. They then become people who are exempt from retribution in the revenge killings. This is now the situation with my father. This is why my father is exempt from the revenge killing even though he is the one who is accused of performing the original killing that brought about the situation I am in. So now the revenge attack falls against me and my brother. Because we are both still in the second stage of our malehood we are the ones who will be attacked. As we are both out of Albania (my brother is in Greece) obviously if I return now I will be the target of the revenge murder." 8 In addition to supplying further additional information about blood feuds, Mr Vaka also addressed, in some detail, the unstable political situation that is said to exist in Albania. Disturbing as the information may be (assuming always that the details in Mr Vaka's letter are true) the civil unrest was not connected directly or indirectly to Mr Vaka in any way for a Convention reason. He initially claimed the contrary however. He said: "If I were to turn up from Australia now the government would consider that I was returning to assist the rebellion and would treat me as a terrorist. This would be because of the clan situation where it would be expected I would support the rebels. I would also be the subject of attack as a returning Albanian as people would expect me to be returning with money. There are people at the airports who supply the names of returning Albanians to gangs of thugs so they can be robbed as soon as they enter." 9 The first section of this passage may have overtones of persecution on the grounds of political persuasion but the latter part is a clear reference to criminal behaviour: that is not a Convention reason; criminal activity is not, without more, a ground for affording refugee status to a potential victim. As for the first section, the Tribunal rejected the applicant's submissions, saying that it relied on certain reports (extracts of which were quoted by the Tribunal) to the effect that the political situation in Albania has stabilised in recent years. The Tribunal added: "The Tribunal finds that the political situation in Albania has stabilised and the applicant would not be at risk of harm because of generalised political violence if he returned to Albania now or in the foreseeable future. Nor does the Tribunal accept that the applicant would be considered a terrorist returning to aid the rebellion as he has claimed, given the change in circumstances in the country as outlined above." 10 Upon the hearing of these proceedings, Mr Clisby, counsel for Mr Vaka, withdrew any claim for protection on political grounds, relying only upon the claim that his client was at risk of persecution because of his membership of a particular social group. The respondent did not challenge the implication that blood feuds could amount to persecution for such a Convention reason and I will proceed, without deciding, upon the premise that a risk of death or injury as a result of a blood feud of the type described by Mr Vaka could amount to persecution because he and his family could be classified as a "particular social group". I am content to decide this matter according to the submissions that counsel put before the Court. On an appropriate occasion it might be desirable to have the benefit of full argument so that the court might adjudicate on the question of whether blood feuds are more than acts of criminal behaviour. 11 The Tribunal asked the applicant why he had come to Australia. The applicant responded that he had come because his life was in danger in Albania as a result of the blood feud. He stated that he had paid a bribe to get the necessary visa and that he had also paid a bribe to be included in a weight lifting team. He claimed that he had come to Australia with the specific intention of seeking protection, but he agreed that he had no relatives in Australia. The Tribunal asked why, if his purpose in coming to Australia had been to claim protection, he had not applied for protection straight away instead of waiting for seventeen months? The applicant responded that there had been some difficulties after he arrived: he had not known anyone and he could not speak English. That statement was contrary to an answer that he had given in his application for a protection visa. The Tribunal noted that he had visited the offices of the Department of Immigration and Multicultural Affairs on a number of occasions to obtain an extension to his bridging visa; it was of the opinion that he could have inquired about a protection visa on those occasions. The Tribunal further noted that the applicant was an educated man who should have been able to work out what he needed to do. As he claimed to have gone to considerable trouble to arrange his trip to Australia, it was strange that he had not made an effort to find out what was required to obtain protection soon after his arrival. 12 The Tribunal examined, in some depth, the subject of blood feuds in Albania. There is no doubt that they exist but the information that the Tribunal obtained – and which it put to Mr Vaka – suggested, quite strongly, that his understanding of the position was inaccurate. In particular, the Tribunal pointed out to Mr Vaka that the Tribunal had been unable to obtain any information that would corroborate Mr Vaka's assertion that his elderly father was now immune from the vendetta. In forming that opinion, the Tribunal quoted from The Code of Lek Dukagjini, from the work of Margaret Hasluck (who was described as an expert in Kanun Law) and from other authoritative sources. 13 The evidence of Mr Vaka with respect to the blood feud did not impress the Tribunal. In the first place, he claimed that his brother had left Albania in 1990 because of the feud. Yet, on the other hand, the applicant said that he had not begun to worry about it until two or three years later: at which point of time he would have been aged about twenty. Despite his apparent concerns the applicant remained in Albania for a further six years. It is true that in the first part of this period he was a student at the University in Tirana, but after his graduation, he obtained work with the Ministry of Agriculture at Bajram Curri. Not only was Bajram Curri his home town, it was also in close proximity to his family's enemies. The Tribunal pointed out that Mr Vaka had worked at the Ministry in Bajram Curri for a year and that nothing had happened to him. The Tribunal also pointed out that Mr Vaka's father had killed the member of the other family in about 1958 – over forty years earlier and there would have been numerous opportunities for the other family to extract its revenge in that time. The Tribunal noted that its readings pointed to revenge in blood feuds being taken as soon as possible. 14 Relying on the 1995 country report on Human Rights Practices in Albania in the year in which Mr Vaka returned to Bajram Curri – the Tribunal noted that the U.S. State Department stated that there were no restrictions on freedom of movement within Albania. This led the Tribunal to reject Mr Vaka's evidence that he was directed by the Ministry to work at Bajram Curri and that he had no choice but to obey instructions. The Tribunal concluded that the applicant was not of interest to the other family. The Tribunal also came to the conclusion that if Mr Vaka was truly fearful of returning to Albania, he would have acted with greater speed in seeking a protection visa. Instead, he applied for a bridging visa and five extensions of that visa: cf. Subramaniam v Minister for Immigration and Multicultural Affairs (unreported, Federal Court of Australia, 10 March 1998 per Carr J). 15 The combination of these matters led the Tribunal to conclude that the applicant was not a credible witness. The Tribunal, in my opinion, expressed care and had regard to the relevant authorities before coming to that conclusion. It was, however, a conclusion that was reasonably open to the Tribunal on the material that was before it, and it is not within the province of this Court to challenge that conclusion of the Tribunal. 16 The critical passage in the Tribunal's reasons appears in the following quotation: "In this case, the Tribunal finds that the applicant's actions have not been consistent with his claimed fear of being killed in a blood feud. He stated that his brother left Albania in 1990 because of the blood feud, and that he wanted the applicant to go with him at that time. However, the applicant remained for a further six years because he wanted to complete his studies. The applicant claimed to have become particularly concerned about the blood feud in 1992-1993 after the Democratic Party came to power. Nevertheless he remained in Albania for another four years after that. The Tribunal finds that the applicant's decision to remain in Albania until he completed his studies casts doubt on his claim to fear being killed in a blood feud. The applicant stated that the part of Albania where he comes from, Bajram Curri, is notorious for blood feuds. The Tribunal does not dispute that claim but finds that the applicant's move back to Bajram Curri after he completed his university studies in Tirana is not consistent with fear of becoming a victim of a blood feud waged by another family in that area. If the applicant was afraid of being killed, it was open to him not to return to Bajram Curri." 17 Counsel for Mr Vaka advanced three basic propositions in support of his claim that the Tribunal's decision involved errors of law. In the first place, he claimed that the Tribunal erred in its definition of the concepts of "persecution" and the "well-founded fear" test. It was submitted that the Tribunal found that there was no suggestion that there had ever been any attempt to kill or physically harm Mr Vaka, and therefore found that there could be no persecution within the meaning of the Refugees Convention. That submission does not do justice to the Tribunal's reasons; it never made a claim in those terms. What the Tribunal said on this subject was as follows: "The Tribunal notes that the applicant himself has never been attacked by the other family, even though he spent a year in Bajram Curri openly working in the Ministry of Agriculture there. The Tribunal finds that there was opportunity for the other family to harm the applicant if they had wished to do so, but the fact that nothing happened to him during that year indicates to the Tribunal that he is not of interest to the other family." 18 The Tribunal dismissed the application because, in the first place, it found that there was acceptable material from independent sources which contradicted essential features of the applicant's claims and, in the second place, it did not find Mr Vaka to be a credible witness. Some of the reasons why the Tribunal did not consider him to be a credible witness have already been referred to but it is appropriate to catalogue all of them at this stage: · Mr Vaka's brother allegedly left Albania in 1990 because of the blood feud but Mr Vaka did not leave for another six years; · Mr Vaka worked for about twelve months in Bajram Curri which was in close proximity to his family's enemies, yet no attempt was made to molest him; · the cause of the feud is now over forty years old. In that time the family's enemies had done nothing save that in his evidence before the Tribunal Mr Vaka said that on two occasions shots had been fired at his father – a factor that he had never before mentioned; · Mr Vaka said that his father was no longer a potential victim of the feud, yet the writings that were available to the Tribunal pointed to a contrary conclusion; · the Tribunal considered that it was inconsistent with the applicant's claim for refugee status that he would wait seventeen months after his arrival in Australia before lodging his application. 19 Mr Clisby criticised the following passage in the "The Tribunal considers that if the other family did intend to kill a member of the applicant's family, they would have done so by now." According to the submissions that were advanced on behalf of the applicant, this and other like statements amounted to a finding by the Tribunal that nothing short of death or, at least physical attack, could amount to persecution. Such a finding would, of course, be wrong. It is quite clear that persecution can be found to exist even though there is no physical contact: Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 430-1 per McHugh J and at 405 per Toohey J. Mr Clisby claimed that there was support for his argument in the judgment of Mansfield J in Rana Singh v Minister of Immigration and Multicultural Affairs [2000] FCA 1706. In that case his Honour quoted from a passage from the reasons of the Tribunal which was as follows: "The applicant gave oral evidence that there was danger to his life in India from the police. On the applicant's own evidence he was questioned and ill treated by the police on several occasions, including following the death of the Chief Minister. If the Tribunal were to accept this evidence, the police had ample opportunity to kill him if they so wished. He has not provided evidence of any attempt to kill him. For this and all the above reasons the Tribunal does not accept this claim." His Honour then said: "That passage, the applicant submitted, also demonstrated an error of law. It is capable of being construed as meaning that the absence of an attempt to kill the applicant means that he was not arrested as a perceived Sikh activist and mistreated for that reason. Conduct amounting to persecution does not necessarily require conduct involving an attempt to kill a visa applicant. It may be constituted by conduct falling significantly short of that. See for example the observations of McHugh J in Chan at 427 and 429-431. As his Honour pointed out at 430, 'persecution' need not involve being threatened with loss of life or liberty. See also per Toohey J at 405 who agreed with McHugh J on that matter. It does not follow from the fact that the applicant was not killed, or that the authorities did not attempt to kill him, that he was not arrested and mistreated." With respect, I agree with his Honour's remarks. They do not, however, contrary to the arguments advanced on behalf of the applicant, assist the applicant. The applicant in Rana Singh's case was successful; however, his success was not directly and exclusively attributable to that passage in the Tribunal's reasons. The applicant was successful because, as his Honour found, the Tribunal had erred in the way in which it applied an evidentiary test with respect to the weight that should be given to a letter and to an affidavit (see par 40 of his Honour's reasons). 20 In the present case, the initial task that the Tribunal set itself was to inquire whether it accepted that the applicant's family was involved in a blood feud with another family. That necessitated the Tribunal inquiring into past events: see Chan's case at 399 per Dawson J and at 415 per Gaudron J where her Honour said: "If an applicant relies on his past experiences it is, in my view, incumbent on a decision-maker to evaluate whether those experiences produced a well-founded fear of being persecuted." In my opinion, the passages in the Tribunal's reasons that were attacked by Mr Clisby did not amount to an impermissible shift in any onus upon the applicant. The Tribunal was only inquiring into past events so that it might properly assess the weight that might be attached to Mr Vaka's application. It was an examination into Mr Vaka's credibility and that examination by the Tribunal of all relevant factors led the Tribunal to conclude that it did not accept Mr Vaka. It found: "…the Tribunal finds that the applicant's conduct has not been consistent with his claim that he left Albania because he feared being killed in a blood feud. The fact that none of his family has been harmed by the feud for over forty years, despite providing opportunities for the other family to harm them, indicates that the feud, if it existed at one time, is no longer active." 21 Next it was submitted on behalf of Mr Vaka that the Tribunal erred because it reasoned that the absence of an attempt to kill or attack him, necessarily meant that the applicant was not a credible witness. In my opinion, the list of inconsistencies and contradictions in the applicant's evidence answers this submission. The finding against Mr Vaka's credibility resulted from those inconsistencies and contradictions. The fact that there had not been any attack upon him at any time was merely one of many factors that the Tribunal was able to rely on. 22 Thirdly, it was submitted that the Tribunal fell into error by substituting "an evidentiary onus of proof test" instead of a "well-founded fear test". In support of this submission the applicant drew attention to the following extracts from the Tribunal's reasons: "#1. It is reasonable that applicants whose claims are plausible and credible should, unless there are good reasons not to do so, be given the benefit of the doubt (UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, Re-edited, Geneva, January 1992, paras 196-197 and 203-204). #2. … The Tribunal has, in considering this application, been mindful of all these principles in assessing the applicant's credibility. Nevertheless, the Tribunal has come to the conclusion that the applicant is not a credible witness… #3. The Tribunal notes that the applicant himself has never been attacked by the other family, even though he spent a year in Bajram Curri openly working in the Ministry of Agriculture there. The Tribunal finds that there was opportunity for the other family to harm the applicant if they had wished to do so, but the fact that nothing happened to him during that year indicates to the Tribunal that he is not of interest to the other family… #4. The Tribunal considers that if the other family did intend to kill a member of the applicant's family, they would have done so by now…" 23 It was submitted that the second sentence in the second passage and the third and fourth passages demonstrated an error of law. It was claimed that these passages were capable of being construed as meaning that the absence of an attempt to kill the applicant meant that the applicant was not at risk because of a blood feud and that there is not a real chance that the applicant would be harmed if he returned to Albania now or in the foreseeable future. I cannot accept this submission. 24 In the first place, it was within the province of the Tribunal to come to the conclusion that the applicant was not a credible witness. There was, as I have indicated, justifiable grounds for reaching that conclusion. As for the third and fourth passages, they address findings of fact that were open to the Tribunal based on the evidence and other material that was before the Tribunal; they do not indicate that some impermissible onus was cast upon Mr Vaka. They were findings which, when added to other findings, led the Tribunal to come to the decision that there was no real chance of the applicant being persecuted for a Convention reason if he were returned to Albania. 25 In my opinion the application should be dismissed with costs. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Loughlin. Associate: Dated: 11 April 2001 Counsel for the Applicant: Mr M Clisby Solicitor for the Applicant: Mark Clisby Counsel for the Respondent: Ms S Maharaj and Mrs K Southcott Solicitor for the Respondent: Sparke Helmore Date of Hearing: 15 February 2001 Date of Judgment: 11 April 2001