FEDERAL COURT OF AUSTRALIA Capa v Minister for Immigration & Multicultural Affairs [2001] FCA 898 MIGRATION – application for protection visa – review of decision of Refugee Review Tribunal – applicant a citizen of Albania whose name was on a "hit list" in 1991 – whether the applicant was persecuted in 1991 – Refugee Review Tribunal did not make a finding on whether or not the applicant was currently on a "hit list" – whether this constitutes an error of law Migration Act 1958 (Cth) s 476(1)(e), s 476 (1)(b) Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 referred to Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 referred to Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 referred to Minister for Immigration & Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343 referred to Minister for Immigration & Multicultural Affairs v Y [2001] FCA 859 referred to Minister for Immigration & Multicultural Affairs v Yusuf (2001)180 ALR 13 referred to Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 225 referred to Khan v Minister for Immigration & Multicultural Affairs [2001] FCA 736 referred to RAMAZAN CAPA v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS V 766 OF 2000 HELY J 18 JULY 2001 SYDNEY (HEARD IN MELBOURNE) IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 766 OF 2000 BETWEEN: RAMAZAN CAPA APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGE: HELY J DATE OF ORDER: 18 JULY 2001 WHERE MADE: SYDNEY (HEARD IN MELBOURNE) THE COURT ORDERS THAT: 1. 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 VICTORIA DISTRICT REGISTRY V 766 OF 2000 BETWEEN: RAMAZAN CAPA APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGE: HELY J DATE: 18 JULY 2001 PLACE: SYDNEY (HEARD IN MELBOURNE) REASONS FOR JUDGMENT 1 The applicant is a citizen of Albania. Prior to 24 May 1991 he lived with his wife in Shkoder. At that time, the Communist Party was in power and had held power in Albania for over 50 years. 2 The applicant began working for the Democratic Party in September 1990. He actively supported the party in Shkoder during the April 1991 election campaign, which the Democratic Party lost and which was won by the Communists. In April 1991 the applicant became a member of the Democratic Party. 3 RRT accepted that the applicant believed that the Communists had placed his name on a "hit list" after the 1991 elections because of his political activities, and accepted that his name "may have been" on a "hit list" in 1991. The applicant claimed to have learnt of this fact from a person working with the police in Shkoder who had seen the list. In the context it seems to me that RRT has accepted the applicant's claim that his name was placed on a "hit list" by the Communists in 1991 because of his political activities, rather than merely accepting that the applicant had a belief to that effect. 4 RRT also accepted that the applicant and his wife left Albania on 24 May 1991 for Greece because the applicant feared that he would be killed or imprisoned if he remained in Albania. The applicant and his wife encountered hardships in travelling to Greece and living there illegally. Their two children were born in Greece. The family lived in Greece until the wife and children left for Australia in November 1999, followed by the applicant in December 1999. 5 Whilst in Greece the applicant lived under an assumed name to avoid being identified by other Albanians. He moved house frequently and gave his children Greek names. He did not apply for refugee status during the eight years in which he lived there, because he was in Greece illegally, he had no rights, he was afraid, and he did not know what to do. 6 During March 1992 the Democratic Party came into power in Albania and remained in power until July 1997 when the Socialist Party (formerly the Communist Party) regained power. The Socialist party is currently in power. 7 In the period between 24 May 1991 and December 1999, the applicant visited Albania on four occasions. They were described by RRT as follows: · "7-11 November 1996 – visited family and to ascertain whether it was safe to return to Albania; · 25 November 1997 – spent one day in Albania. He came to visit his family and claims that a relative told him that his presence in Albania had been detected so he returned to Greece; · 18-23 January 1998 – visited family following the death of his brother a month earlier; · 5-8 September 1998 – claims he was involved in political demonstrations." 8 The applicant claims to have been told by his brother in November 1996 that it was not safe for him to return to Albania, because even though the Democratic Party was then in power, the security police and other people in authority were the same people who had been in these positions under the Communists. At the hearing, the applicant told RRT that he had not participated in political activities in Albania in September 1998 (CB 60-61). 9 The applicant claimed that he left Greece because the number of Albanians in Greece was growing and he did not wish to be recognised. He came into contact with a person who could get him a visa for Australia (CB 61). 10 RRT accepted that the applicant is still a member of the Democratic Party and he continues to fear that he will be harmed by the Socialist Party (formerly the Communist Party) if he returns to Albania. RRT accepted that the applicant has a subjective fear of persecution for reason of his political opinion if he returns to Albania. 11 Although RRT accepted the applicant's claims that he retains his membership of the Democratic Party, it also found: - that the applicant had not been active in the Party for the past nine years while he has been living in Greece; - that the applicant never held office in the Party, and did not claim to be a person of importance within the party; - the applicant had spent no more than two weeks in total in Albania over the past nine years and was not active in Albanian politics in that period; - the applicant's fear that he would be harmed was based entirely on reports from a friend working in the police that his name was on a "hit list" in 1991 and on reports from his family that it was not safe for him to return; - the applicant has spent so little time in Albania over the past nine years that he is unable to demonstrate that his fears are well-founded. 12 In the light of these findings, RRT posed for itself the question whether the applicant's fear of persecution, if he were to return to Albania now or in the reasonably foreseeable future, is well-founded. In the introductory section of its reasons, RRT expanded upon the notion of a "well-founded fear" of persecution as follows: "Fourth, an applicant's fear of persecution for a Convention reason must be a 'well-founded' fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a 'well-founded fear' of persecution under the Convention if they have genuine fear founded upon a 'real chance' of persecution for a Convention stipulated reason. A fear is well-founded where there is a real substantial basis for it but not if it is merely assumed or if it is mere speculation. A 'real chance' is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 percent." 13 RRT had country information before it that referred to "signs" that Albania is "returning" to normal political life. RRT accepted the point made by the applicant's adviser that Albania is a country in transition and that it has not necessarily reached a state where political rights are "guaranteed". Nevertheless the information available to RRT indicated that the political situation, while still polarised, is stabilising, and "supporters of the Democratic Party are not generally at risk for reason of their political opinion". While the Democratic Party made numerous allegations that its members were being abused by the Socialist Party government "it appears that most of these allegations could not be confirmed". RRT found that the applicant did not have a profile which would place him at greater risk of being harmed by the Socialist Party for reason of his political opinion than that of Democratic Party supporters generally. RRT said that the information obtained by the Tribunal indicates that: "Albania is now safe for members of the Democratic Party." The quoted statement, if taken literally, might be thought to involve an exaggeration of the effect of the country information which RRT quotes in its reasons, but it was not submitted that this amounted to a reviewable error: cf Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 and 291-292. 14 RRT expressed its conclusion as follows: "Based on the country information available to it and in view of the applicant's short-lived and low level history of political activity which took place over nine years ago, the Tribunal finds that there is not a real chance that the applicant will be persecuted for reason of his political opinion or for any other Convention reason if he returns to Albania now or in the foreseeable future. The Tribunal therefore finds that the applicant's fear of persecution is not well-founded." The arguments on review Chan's Case 15 The further particulars filed by the applicant on 29 January 2001 asserted that, as a matter of law, RRT was required to find that the applicant had a well-founded fear of persecution at the time of RRT's determination, because he had such a fear when he left Albania, and any subsequent change in circumstances was not such as would allay the fear of a reasonable person in the position of the applicant: Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 ("Chan") at 391, 399 and 415. 16 The contentions of fact and law filed by the applicant on 12 February 2001 elaborated on this ground, but it was omitted from the amended contentions of fact and law filed on 29 June 2001. I was informed by Mr Boston, counsel for the applicant that this omission was deliberate, and that this ground is no longer relied upon. No past persecution 17 At CB p 68 RRT said: "[The applicant] has not been persecuted in the past, and he has never even been confronted by members of the Socialist Party or by officials at any level who seek to do him harm." 18 The applicant submits that RRT made an error of law in finding that the applicant had not been persecuted in the past in Albania, as "persecution" can be established by the threat of harm, and on the facts as found by RRT, the applicant was threatened with harm by the inclusion of his name upon the "hit list". The operation of s 476(1)(e) of the Migration Act 1958 (Cth) is thus enlivened. The applicant refers to statements in Chan at 388 (Mason CJ), 399 (Dawson J), 406 (Toohey J), 430 (McHugh J) which make it clear that the threat of harm may constitute persecution, and that it is the fear of persecution in the future, not the fact of persecution in the past, which is central to RRT's enquiry. 19 At 388 in Chan Mason CJ put the matter in this way: "Obviously harm or the threat of harm as part of a course of selective harassment of a person, whether individually or as a member of the group, amounts to persecution if done for a Convention reason." (emphasis added) 20 Counsel for the Minister, Mr Star, responded to this argument by a number of alternative contentions. First, he submitted that the quoted statement by RRT was a finding, which RRT was entitled to make, that in all the circumstances, the inclusion of the applicant's name on the "hit list" did not amount to a threat of "some serious punishment or penalty or some significant detriment or disadvantage" and thus was not within the notion of persecution. Being on a "hit list" does not mandate a conclusion of persecution, in the same way that exposure to arbitrary imprisonment or torture would do, if done for a Convention reason. Depending on the nature of the "hit list" a conclusion of persecution might or might not be drawn. 21 Second, he submits that even if there was a legal error in denying to the applicant's inclusion on the "hit list" the character of persecution, it was an immaterial error, as RRT decided the case upon the basis of the change in circumstances since 1991. For that reason the past no longer provided a reliable guide as to the future (cf Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 574-575) and any error in characterisation of the 1991 conduct did not have any consequence in terms of the ultimate decisions: Minister for Immigration & Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343; Minister for Immigration & Multicultural Affairs v Y [2001] FCA 859 [28]. 22 Third, Mr Star submits that, in context, the appellant's complaint does no more than expose a verbal infelicity on the part of RRT. In the same paragraph as the passage quoted in par 16 above the following appears: "The Tribunal is prepared to accept that the applicant's name may have been on a "hit list" in 1991, but does not accept that his past political activities would result in him being harmed if he returned to Albania now." RRT accepted, so the Minister submits, that the applicant was exposed to the risk of harm in 1991 by reason of his political opinion, but was satisfied that the circumstances had so changed in the meantime that it was not satisfied that there is a real chance of persecution on that account should the applicant now return to Albania. The well known passages in the judgment of the High Court in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 and 291-292 (Kirby J), cautioning against treating a verbal slip as indicative of legal error, were relied upon by the Minister. 23 Mr Boston submitted in reply that in the present context "persecution" is a term of art which is not likely to be used loosely by an RRT member. In any event, if RRT began its assessment on the legally erroneous starting point that the inclusion of the applicant's name on a "hit list" in 1991 was not indicative of persecution, this necessarily clouds RRT's assessment of whether circumstances had so changed that there was not now a real chance that the applicant would be exposed to persecution. 24 There is a direct inconsistency between the first and third submissions of the Minister. I do not accept the first submission. RRT accepted the applicant's claim that in 1991 he feared that he would be killed, or put in prison if he remained in Albania. That fear flowed from the inclusion of his name on a lit of people the Communists wished to interview. That is the "hit list". The reason that the applicant's claim failed was not because RRT found that the inclusion of his name on a "hit list" was without relevant consequence in 1991, but because circumstances had changed in the meantime. 25 RRT was not required to address (and on a fair reading of its decision it did not address) whether the inclusion of the applicant's name on the "hit list" in 1991 amounted to persecution. RRT accepted the applicant's account of the 1991 events, but came to a conclusion adverse to the applicant on the issue which it was required to address, and which it did address, namely whether his past political activities and present membership of the Democratic Party would result in him being harmed if he returned to Albania now. 26 This ground on which review is sought fails. Is the applicant still on the "hit list"? 27 The applicant submits that in reaching its decision, RRT did not consider the following questions: - whether the applicant was still on the "hit list" at the time of the hearing ; - whether the applicant had been removed from the "hit list" at the time of the hearing. That failure is said to constitute an error of law reviewable under s 476(1)(e) of the Act as well as a jurisdictional error reviewable under s 476(1)(b). Reliance was placed on the decision of the High Court in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 13, and in particular on the passages in the joint judgment of McHugh, Gummow and Hayne JJ at [81] to [84]. 28 Counsel for the applicant conceded that it was open to RRT to conclude, on the material to which it referred, that the applicant's fear of persecution was not well-founded, but submitted that RRT failed to address the relevant question, namely whether the applicant's name was still on the "hit list". If his name were still "on the list", then the applicant would be in a different position from the generality of Albanian democrats. What he was told by his brother in November 1996, and the fact that he was told in November 1997 that his presence in Albania had been detected, tended to indicate that he was still "on the list". The absence of a specific finding by RRT as to whether the applicant's name was still on the "hit list", suggests that RRT did not consider this to be a material matter, whereas it is central to the applicant's claim. 29 In my view, it has not been established that RRT failed to address the correct question. Having accepted that the applicant's name was placed on a "hit list" in 1991, RRT did not have to go on and consider whether his name was still on that list. The question for its determination was whether in the light of that finding and other relevant circumstances the applicant faces a real chance of persecution in the future if he returns to Albania. RRT addressed that question, and found against the applicant. RRT did not accept that the applicant was likely to be harmed by the Communists by reason of his membership of the Democratic Party and his pre-1991 activity. 30 Figuratively speaking that may involve a finding that the applicant is not "on the list" (if there is one), or it may involve a finding that his name remains on the 1991 list, but that is no longer of relevance because supporters of the Democratic Party in general are not at risk in Albania today by reason of their political opinion, and the applicant does not have a profile which places him at any greater risk of being harmed by the Socialist government. It may also mean that RRT placed less weight on the hearsay evidence of 1996 and 1997 than it has on the current country information. But that is a matter for RRT. RRT did not commit any legal error in failing to respond specifically to the questions which the applicant contends it was bound to address nor did it thereby fail to take material considerations into account: Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 225, 286; Khan v Minister for Immigration & Multicultural Affairs [2001] FCA 736, [15]. Conclusion 31 The application should be dismissed with costs. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely . Associate: Dated: 18 July 2001 Counsel for the Applicant: Mr T Boston Counsel for the Respondent: Mr D Star Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 9 July 2001 Date of Judgment: 18 July 2001