FEDERAL COURT OF AUSTRALIA Shatku & Anor v Minister for Immigration and Multicultural Affairs [2001] FCA 636 IMMIGRATION – refugees – whether or not material not placed before the Refugee Review Tribunal may be placed before the Court – whether the Refugee Review Tribunal impermissibly placed an evidentiary onus upon the applicants in excess of what the authorities require Migration Act 1958 (Cth) ss 476(1)(e), 476(1)(f), 476(1)(g), 476(4)(b) Indatissa v Minister for Immigration and Multicultural Affairs [2000] FCA 1119 cited Minister for Immigration and Multicultural Affairs v Indatissa [2001] FCA 181 followed Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505 followed Sukhbir Singh v Minister of Immigration and Multicultural Affairs [2000] FCA 1705 approved ALTON SHATKU & ANOR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS NO S 74 OF 2000 O'LOUGHLIN J ADELAIDE 31 MAY 2001 IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S74 OF 2000 BETWEEN: ALTON SHATKU & ANOR APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: O'LOUGHLIN J DATE OF ORDER: 31 MAY 2001 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The matter be remitted to the Tribunal, differently constituted, for further consideration in accordance with these reasons. 2. The respondent pay the applicant's costs which costs are to be taxed in default of agreement. 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 S74 OF 2000 BETWEEN: ALTON SHATKU & ANOR APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: O'LOUGHLIN J DATE: 31 MAY 2001 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 The applicants in these proceedings are Alton Shatku and his wife Anila Kiri. They are citizens of Albania who arrived in Australia on 13 December 1998. Within a month of their arrival, they lodged an application for protection visas with the Department of Immigration and Multicultural Affairs, but on 29 March 1999 their application was refused. Having unsuccessfully sought review by the Refugee Review Tribunal ("the Tribunal"), they now seek from this Court a review of the Tribunal's decision. 2 Mr and Mrs Shatku are both aged twenty-nine; they married in December 1994. Mr Shatku's mother continues to live in Albania and he has a brother in North America. He attended University in Shkoder from 1990 until December 1991 when he left Albania for Germany. He lived in Germany from December 1991 until December 1998 when he and his wife came to Australia. Whilst in Germany, he worked, first, as a butcher and later, from January 1995, as a basketball player and coach. Mrs Shatku also attended University in Albania but in Germany she worked in child care and as a shop assistant. 3 Mr Shatku claimed, in a statement that accompanied his application, that during a period of imprisonment in the late 1940's or early 1950's, his grandfather had killed a man. Mr Shatku further claimed that a third party had told him in 1991 that a blood feud between his family and the family of the deceased, the Pjetri family, would be pursued and that, as his father and grandfather were both dead, he would be killed. He said that, as a result of this threat, he and his brother then left Albania. Thus, so it was claimed, the applicants had a well founded fear of being persecuted for reason of their membership of a particular social group – the group being the Shatku family. The Minister did not challenge the fundamental proposition that fear of a blood feud could amount to a Convention reason. 4 Mr Shatku was joined by his wife to be, Anila, in Germany in 1992. He said that they "lived on refugee papers until December 1994" when they returned to Albania to marry. Thereafter the couple returned to Germany on a sports visa in January 1995. Mr Shatku had played basketball in Albania at a national level but, so he said, he restricted his career in Germany to the State league competition so that he could keep a low profile. 5 An issue of great importance to the applicants' case occurred in April 1998. Their apartment was broken into and their effects were damaged. Mr and Mrs Shatku arrived home one night with friends to find their home ransacked and an unsigned note, in Albanian, to the effect that "next time it will be different." Mr Shatku said that he knew that the incident was connected with the blood feud. According to Mr Shatku, he and his wife moved to another address, but stayed in the same town; he continued with his basketball and no further incidents occurred. Mrs Shatku corroborated her husband's evidence about the blood feud and the house breaking. 6 Mr Shatku said in his evidence before the Tribunal that his mother "had been contacted by the other family a couple of times and told [that] her sons would be killed for revenge". He also said that his mother left Shkoder and moved to the capital, Tirana, some 120 kilometres away, to escape the Pjetri family. This, said Mr Shatku, enabled him to visit his mother from Germany more frequently although, as the Tribunal noted in its reasons "he did not feel completely safe all the time, and he remained hidden". 7 The Tribunal was prepared to accept that blood feuds have resurfaced in Albania since the end of the communist regime; it was also prepared to accept that Mr Shatku's grandfather may have been imprisoned during the 1940's and the 1950's. However, it was not satisfied that the applicant's family was ever involved in a blood feud, nor was it satisfied that his grandfather had killed a man whilst he was in prison. 8 Ms Layton QC, counsel for the applicants, sought to tender material that had emanated from a Mr Pjeter Dodani. Ms Layton explained that Mr Dodani was a friend of the Shatku family and that he was the person who had informed the family of the existence of the blood feud; he is also a person who had kept in touch with Mr Shatku's mother in Albania. Ms Layton said that as a result of her inquiries, she had located material – material from Mr Dodani that she submitted would be relevant to her clients' claim but which was not before the Tribunal. Her application to tender this and other material (which had not been before the Tribunal) was opposed, but as the parties were not then ready to argue the question of admissibility I received some of the documents de bene esse and granted the parties leave to make further written submissions on the question of admissibility. Ms Maharaj, counsel for the Minister, did, however, in the course of raising her objection, refer to the decision of Weingberg J in Indatissa v Minister for Immigration and Multicultural Affairs [2000] FCA 1119. Submissions in the matter before me were made on 7 March 2001 without counsel or the court being aware that a Full Court of this Court had, two days earlier, on 5 March allowed the Minister's appeal in the matter of Indatissa. My associate drew the attention of the parties to this fact by letter dated 8 March 2001, but no further submissions have been received from either counsel. In my opinion, the decision of the Full Court in Minister for Immigration and Multicultural Affairs v Indatissa [2001] FCA 181 at par 32 is clear authority to the effect that, as a review court, this Court is to have regard only to the material that was before the Tribunal. As far as I am aware, the only exception to that rule would be a case where the manner in which the proceedings were conducted by the Tribunal became a ground of review. That is not the case in these proceedings. 9 The applicants advanced three grounds in support of their application for review. In the first place they claimed that the Tribunal had erred in law in that it had applied the wrong test in assessing their evidence about their claimed status as refugees. This failure, so it was claimed, attracted the provisions of par 476(1)(e) of the Migration Act 1958 (Cth) ("the Act"). Secondly, it was claimed that the Tribunal's decision was affected by bias: see par 476(1)(f) of the Act. Finally, it was submitted that there was no evidence or other material to justify the making of the Tribunal's decision: par 476(1)(g). ERROR OF LAW 10 The applicants tendered five documents in support of their claims for refugee status. In view of the submissions that were made on their behalf, it is necessary to note the contents of each of those documents and to summarise what the Tribunal had to say about each of them. 11 The first of the documents was a letter from the General Director of Prisons dated 2 December 1998. It was in the following terms: "It is confirmed that Mr Qemal Izet Dibra, born in the year 1912, on the basis of the register No 1, Item 5724, was arrested on 22.11.1944 and released on 5.12.1957. This confirmation is issued upon request of the abovenamed." The Tribunal accepted that this letter related to Mr Shatku's grandfather, but it said of the letter: "Even if this document is genuine, it only supports the claim that the grandfather was in prison, not that he killed a man while in prison, and therefore does not support the contention that there was a blood feud as a result." 12 Counsel for the applicants criticised this passage in the Tribunal's reasons, claiming that the Tribunal misunderstood the purpose of the tender. It was submitted that it was a "link in the chain". It was not intended to establish, per se, the existence of a blood feud, but it did support Mr Shatku's claim that there was a time when his grandfather was in gaol. There was a second aspect of the Tribunal's reasons which came under attack with respect to this document. In its reasons the Tribunal noted that the letter from the General Director of Prisons was said to have been issued "upon the request of the abovenamed". The Tribunal identified "the abovenamed" as Mr Shatku's grandfather and offered the comment: "However, the applicant indicated that his grandfather had died a long time previously." Ms Maharaj, counsel for the Minister, suggested that this was an "excusable mistake". Ms Layton suggested that it was consistent with a view that the Tribunal had adopted which was unreasonably suspicious of the case that was being advanced by the applicants. Other justifiable complaints suggest that what Ms Layton submitted may be correct. 13 The second document was entitled "family details". It listed the names, sex, relationships, dates of birth and marital status of various members of the Shatku family. The Tribunal noted that this document did not indicate the existence of any blood feud. Ms Layton answered, however, by claiming that it established a connection with the grandfather but, in my view, that connection is not apparent. The name, Alton Shatku, does not appear in the document. 14 The third document was a joint statement from the applicants' friends who were present when the applicants returned to their apartment to find that it had been broken into. The relevant extract from their statement was as follows: "On the apartment table, a piece of paper had been left on which had been written in Albanian, clearly and in large letters: 'Aren't you lucky! Next time it will be different'." 15 The witness' statement was rejected on the basis that it referred: "… only to a break in by criminals, however, and does not confirm the existence of a blood feud. Nor does the note the couple say they saw indicate any reference to a blood feud. While it was apparently written in Albanian, this does not point to a blood feud either, as the applicants indicated that there are large numbers of Albanians living in Germany." The reasoning of the Tribunal pointed, inappropriately, to the absence of reference to a blood feud. The obvious purpose of the statement from the two witnesses was to support the evidence of Mr and Mrs Shatku that the house breaking event had occurred. 16 The fourth document that were tendered by the applicants before the Tribunal was a declaration from the Commissioner of Police at Shkoder which said: "We declare that lives of all persons involved in blood feuds, can not be guaranteed when it is considered that this phenomenon is widespread in that it is impossible for the law to be respected." 17 The Tribunal said of this document that it did not indicate that Mr Shatku was involved in a blood feud. That, of course, is accurate but the letter, if genuine, was clearly tendered on the question whether the State was in a position to offer protection to potential victims of blood feuds. Once again, it seems as if the Tribunal misunderstood the purpose of the tender. 18 The last of the documents that was placed before the Tribunal in support of the applicants' claims for refugee status was a letter that had ostensibly emanated from the "Committee of the National Commission for Reconciliation". That letter claimed, inter alia, that "the Shatku family and their kin have been involved in a blood feud conflict with the Pjetri family since 1951". The letter went on to say that efforts by the National Commission for Reconciliation to find a solution to this conflict had been unsuccessful. It named the mediators of the commission and it concluded with the comment that the members of the Shatku family "are endangered in this blood feud". As to this document, the Tribunal said: "It says that members of the Shatku family have been involved in a blood feud since 1951, and that attempts have been made at reconciliation since 1991 have been unsuccessful. The applicant when questioned about the reconciliation process appeared to be very vague about it, and this seems at odds with a feud which has apparently been attempted to be resolved since 1991. In any event, I do not place any weight on this document, given the extent and sophistication of document fraud in Albania as outlined below." 19 In summarising its views about the applicants' claims that Mr Shatku has the potential to be a victim of a blood feud, the Tribunal said this: "I note that the applicant and his wife arrived in Australia on forged passports and then produced their own when they applied for refugee status. The applicant has shown himself to have the ability and the will to utilise false documentation to suit his own purposes. Taken with the information about the extent of document fraud, I do not place any reliance on the documents he has produced to support his case, and therefore do not accept that they provide support for the applicant's claim of the existence of a blood feud involving his family." 20 During the course of its reasons, the Tribunal referred to country information and quoted extensively on the subject of falsification of documents in Albania. It would seem to me that the Tribunal, relying upon the proliferation of forged documents in Albania, coupled with the applicants use of forged passports, created an insurmountable hurdle for them. Burchett J in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505 at 562 said: "A decision may sometimes, by virtue of extreme disparity between it and the material on which it is based, or for some other reason, give a clear indication that it is based on some error or errors of law, even though no particular error is identifiable in the reasons of the decision-maker." In my opinion, his Honour's remarks apply to the Tribunal's reasons in this case. I fail to understand how the Tribunal was able to conclude that it did not place any reliance on the document that had been produced. 21 I am concerned about the willingness of the Tribunal to state that it did not accept any of the documents that were produced. Perhaps the Tribunal might, having regard to the information that was before it, have a jaundiced view about the letter from the Committee of the National Commission for Reconciliation. That letter, after all, purports to identify the existence of the Shatku-Pjetri feud. The Tribunal might also have had reason to be suspicious of the statement from the Shatku's friends, although the reason is not apparent because one cannot overlook the fact that the event might have occurred as an act of criminality that was unrelated to a blood feud. However, there seems to have been no reason to regard the letter from the General Director of Prisons, the certificate of "Family Details", and the letter from the Commissioner of Police as unreliable. The rejection of those last mentioned documents without explanation, other than the general state of affairs in Albania, suggests the imposition of a standard of proof beyond that which is expected of applicants for protection visas. 22 At one stage during the course of its reasons, the Tribunal noted the existence of certain documents upon which the applicant relied. As to these, the Tribunal said: "I note that none of the documents submitted are originals". It was a mistake on the part of the Tribunal if, by that statement, it was inferring that only original copies of documents were, or would be, of value to the Tribunal in its deliberations. A similar situation occurred in Sukhbir Singh v Minister of Immigration and Multicultural Affairs [2000] FCA 1705 at par 27 where Mansfield J said that: "In my view, it is erroneous on the part of the Tribunal to adopt the view that no weight should be given to photocopied documents simply because they are photocopied unless they are "unequivocally authenticated". His Honour was of the opinion that remarks of that kind suggested that the Tribunal was imposing an evidentiary onus upon the applicant beyond that contemplated by the Act. However, apart from the statement that I have quoted, it would not seem that the Tribunal relied in any way, in coming to its decision, upon the fact that documents were not originals. Instead, it concluded that it did not place any reliance on the documents that the applicants had produced. 23 As the Tribunal noted, the applicant's story about the feud was "slim". He returned to Albania from Germany on several occasions, including the occasion of his marriage. He even made three or four trips to Albania after the housebreaking episode. The Tribunal commented, understandably, "These do not seem to me to be the actions of a man in fear for his life from a blood feud in Albania". Nevertheless, the Tribunal appears, in my opinion, to have imposed an evidentiary onus on the applicants beyond that contemplated by the Act. 24 It would be impermissible for a Tribunal to proceed upon the premise that all documents that are sourced from Albania are false and cannot be relied upon. Falsification of documents in that country may be endemic, but that does not mean that all documents are to be treated as false. It is within the ambit of the Tribunal's powers to examine any document that is placed before it and to determine what, if any, weight should be attached to it. That is part of the fact finding exercise that is entrusted to the Tribunal. However, that does not mean that the Tribunal is entitled to reject a document for the sole reason that it was sourced in Albania. 25 I have come to the conclusion, having regard to the Tribunal's reasons as a whole, that it has impermissibly imposed upon the applicants an evidentiary onus that exceeds that which the authorities require. BIAS AND NO EVIDENCE 26 Because I have concluded that the Tribunal applied an unacceptable evidentiary onus, it is not necessary for me to address these subjects other than to say that I do not consider that there is any substance in either of them. I do, however, feel, in fairness to the Tribunal member that I should make a brief statement on the subject of bias. 27 I have, in a judgment published this day in the matter of Pemaj v Minister for Immigration and Multicultural Affairs, discussed some of the relevant authorities that deal with the question of bias. I do not consider that it is necessary to repeat what I said there on this subject. 28 It was claimed that the Tribunal approached the application in this case with a mind that was closed to the issues that had been raised and that the Tribunal held preliminary views that were incapable of alteration. It was submitted that the Tribunal member had prejudged the case to the point where her views were incapable of change notwithstanding the facts. 29 Further grounds in support of the claim of bias were: · Evidence of falsification of documents in Albania operated, on the member's approach, to exclude the possibility that the documents produced by the applicants in the matter were genuine. · In rejecting all documentary evidence produced by the applicant including the statement from the Reconciliation commission, the member failed to consider the veracity of those documents on their face, or the credibility of the applicant overall. 30 In my opinion there is no justification for this claim of bias. This was a case where the applicants told a story which the Tribunal fairly described as "slim". It was also a case where the applicant supplied documents which the Tribunal decided that it could not rely upon. It achieves nought for an applicant to accuse a Tribunal member of bias because the Tribunal's decisions have been adverse to the applicant. 31 As a ground has been made out that warrants the intervention of this Court the application should be granted and the matter should be remitted back to the Tribunal, differently constituted, to consider the matter in accordance with these reasons. The respondent is to pay the applicants' costs. POSTSCRIPT 32 At the conclusion of the hearing of this matter on 7 march 2001, leave was granted to the applicant to file further written submissions concerning various materials that had been the subject of an application to be received into evidence; they had not been placed before the Tribunal. The applicant was granted a period of twenty-one days to file these submissions, with the respondent having a further fourteen days to file any reply. 33 On 28 May 2001 the applicant filed further submissions on this subject. These submissions were out of time by two months, and furthermore were received subsequent to the composition of these reasons, but prior to their publication. 34 I have therefore had no regard to the content of the applicant's further submissions. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Loughlin. Associate: Dated: 31 May 2001 Counsel for the Applicant: Ms Robyn Layton QC Solicitor for the Applicant: McDonald Steed Counsel for the Respondent: Ms Sashi Maharaj Solicitor for the Respondent: Sparke Helmore Date of Hearing: 7 March 2001 Date of Judgment: 31 May 2001