FEDERAL COURT OF AUSTRALIA SWBB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1149 SWBB v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS No S 108 of 2004 FINN J ADELAIDE 6 SEPTEMBER 2004 IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 108 OF 2004 BETWEEN: SWBB APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: FINN J DATE OF ORDER: 6 SEPTEMBER 2004 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 2004 BETWEEN: SWBB APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: FINN J DATE: 6 SEPTEMBER 2004 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 The applicant in this matter is entitled to have a sense of grievance with the Tribunal's reasons for decision in refusing his application for a protection visa. They contain flippantly offensive comment and are marked as much by bare assertion as by explanation. 2 The applicant is an Albanian who founded his claim for refugee status on three separate bases. The first was participation in two "blood feuds". The second was by reason of membership of a particular social group of businessmen. The third alleged persecution by reason of political opinion. FACTUAL SETTING 3 This can be stated relatively shortly. 4 The applicant and his father opened a shop in 1997 which they later converted into a bar/restaurant. This venture proved successful and they later became the subjects of extortion by a criminal gang which included the Cufe family. After one extortion demand which he refused to pay, the applicant and his father decided they should report the gang to the police but elsewhere than at their local police station. 5 The applicant drove with a relative, Sokol, to Tirana to make the complaint but was informed that the complaint should be made to their local station. In the course of the attempted complaint he named the Cufe family as being in the gang. On their return home they stopped at his aunt's house where they were invited to stay the night. Sokol needed to return to Berat. He took the applicant's car and was shot and killed on the way home. 6 The applicant assumed that Sokol had been shot by mistake; that he was the intended victim; that the perpetrators were the Cufe gang; that the Tirana police had notified them of the applicant's whereabouts; and that the attempt to kill him was as punishment for his reporting the gang to the police and/his refusal to pay when the last extortion demand was made. 7 Sokol's brother avenged the murder by shooting one of the Cufe brothers before departing immediately to France where he died some time later. The applicant has no details of the circumstances of his death. 8 The applicant did not return to his home from his aunt's house. He went to Tirana from where he was smuggled to Italy. He then came to Australia. THE TRIBUNAL'S REASONS (a) The two "blood feuds" 9 The feuds relied upon were, first, that which was initiated by the Cufes because the applicant informed on them to the police and, second, the feud resulting from his cousin's killing of one of the Cufe brothers. 10 The first of these was, in the Tribunal's opinion, founded on the assumptions the applicant made about Sokol's death – assumptions which it characterised as "speculations" of which it was dismissive and to some degree offensively so. The Tribunal went on: "Nevertheless, Sokol was killed and the fear that this incident engendered prompted the applicant not to return to Berat. The applicant's fear is fear of a criminal gang which has targeted him for reason of his perceived wealth and ability to pay 'protection money'. There is no Convention nexus to the harm the applicant fears. The applicant's description of Sokol's deaths and two subsequent deaths as a 'blood feud' (even if this description were accurate: see independent evidence above) does not provide a Convention nexus. Sokol was killed; Sokol's brother murdered the man whom the applicant assumes had killed Sokol (although whether that was Sokol's brother's motivation is unknown); Sokol's brother died of unknown causes at a later date in another country – these events are not examples of persecution for Convention reasons, but rather personal animosities, personal revenge and/or criminal acts." 11 Turning out of order to the third (the "political opinion") claim, this was formulated by the applicant's migration agent in the following terms: "The applicant claims that freedom to exercise his right to vote has been denied him as the Cufe family in his section of Berat threaten all persons who do not vote for the candidate they favour with death. He is a supporter of the Democratic Party, and not a supported of the Socialist Democratic Party. He can not express those views either openly or in voting for the candidate of his choice at elections, without fearing harm on his person, and that harm is death at the hands of the Cufe family/gang." 12 The Tribunal "explored" this matter at the hearing. Its conclusions on the matter it expressed in this way: "The applicant also tried to bring into the equation political opinion. His testimony in this regard was unconvincing and the submissions of his adviser simply wrong. However, at hearing [sic], the applicant claimed that the governing party was corrupt and protected the Cufe gang at whose hands the applicant feared serious harm. This is a mere assertion. In support of his claim, the applicant mentioned various individuals who were corrupt and who had connections with the Socialist Party. The adviser's written assertion that the applicant was denied his freedom to vote as he chose because the Cufes generally demanded that people support the party of their choice was not pursued at hearing and the Tribunal dismisses it." 13 I would note that the reference in this to the adviser's submission being wrong relates to a reference made to a named political party which the Tribunal put to the applicant did not exist. The applicant's submissions to this Court (again prepared by this migration agent) disputes the Tribunal's view by reference to US State Department country information. The submissions also dispute the Tribunal's assertion that the issue of denial of freedom of vote was not pursued at the hearing, though no evidentiary foundation was advanced to support the submission made. 14 The second (the "particular social group") claim is captured in a letter sent to the Tribunal by the applicant's migration agent. It stated (in part): "Following the hearing into this matter on Friday 20th February 2004, please find enclosed information referred to during the hearing, which shows that business persons have been persecuted just like my client. There is no doubt in our mind that he belongs to a social group, namely business men who are persecuted by criminal gangs that are tolerated by the state authorities, and in the case of the Cufe Family entrenched themselves in the political community of Berat." 15 Again with characteristic brevity the Tribunal dismissed the claim: "The adviser has submitted that the applicant comes within the ambit of the Convention because his fear of persecution is for reason of his membership of a particular social group, constituted by 'businessmen who are persecuted by criminal gangs that are tolerated by the State authorities'. The Tribunal does not find that this is a cognisable group. Furthermore, the Tribunal notes that in the authoritative case of Applicant A, the Court rules that 'persecution or fear of it cannot be a defining feature of the group' – and yet that is precisely how this suggested group was formulated." 16 Earlier in its reasons the Tribunal had dealt with the issue of effective state protection. It was prepared to accept that there were corrupt police in Berat and acknowledged that the police did not have a good reputation in Albania. Nonetheless, it noted from the independent evidence that the government was making a serious effort to improve the force and stamp out corruption. It indicated that there were avenues for complaints against the police. And it concluded that the evidence relied upon by the applicant in relation to his attempted "complaint about criminal extortion did not, in itself, indicate that Albania is not willing or able to protect its citizens". 17 The Tribunal's summary of its reasons was as follows: "On the evidence before it, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a Convention reason. He was a victim of extortion from a local criminal gang because he was running a successful business. He did not pursue available options in terms of invoking the assistance of the authorities. A relative of his was killed, possibly as part of the criminal cycle of escalating threats. This in turn may have provoked revenge killings, but these do not specifically involve the applicant. The applicant has used the term 'blood feud' in relation to his relative's death, but this is not a blood feud as described in the classic canon, but a criminal exercise. In any case, whether or not it is a blood feud brings the matter no closer to the ambit of the Convention. … There is nothing before the Tribunal to indicate that the applicant cannot seek State protection or that it would be unwilling or unable to afford it as it would to any citizen." CONSIDERATION 18 The applicant represented himself in this matter. His application raises issues essentially of merits review and of the weight or character given to particular matters. It was probably prepared by a migration agent as were the "Contentions of fact and law" that were filed. The latter also deals primarily with the merits. It equally seeks to raise issues that either were not before, or else were inconsistent with the findings made by, the Tribunal. I have not found them to be at all helpful. 19 As I earlier indicated, the Tribunal's reasons are far from exemplary. They contain offensive comment and bald assertion. Nonetheless, I am not satisfied that in the end the Tribunal has committed a jurisdictional error in reaching the conclusion it did. 20 Its rejection of the first of the two blood feuds, if insensitively put, was based on its rejection of the basis advanced for there being a feud at all. This conclusion was one open to the Tribunal. It involved no reviewable error. The second of the alleged feuds, that arising from a killing of one of the Cufe brothers, was never specifically claimed to be one subject to traditional Kanun law. The Tribunal rejected characterisation of the "feud" as being one of that type. It gave a character to it which did not raise any claim that the applicant was being targeted for harm by reason of his membership of his family. And the conduct in question was characterised as involving personal animosities, personal revenge attacks and/or criminal acts. This again involved a fact finding open to the Tribunal that is not reviewable by this Court. 21 The migration agent's contentions have sought to cast this feud as one of the traditional type. Even if the claim could permissibly be recast in this fashion – and I do not consider it can – it would fail under s 91S of the Migration Act 1958 (Cth) as that section is understood to apply to a family feud: see e.g. SCAL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 301. 22 The claim based on persecution by reason of membership of a particular social group, being "businessmen who are persecuted by criminal gangs that are tolerated by the State authorities", failed on several bases. One was that it was not a "cognisable group"; another, that the applicant, as a businessman subject to extortion, had State protection available to hire. Despite the brevity of the Tribunal's reasons on the first of these matters – they border on the unduly uninformative – it cannot be said that the Tribunal applied the wrong test. Its reasoning was consistent with the test stated in Applicant S v Minister for Immigration and Multicultural Affairs (2004) 206 ALR 242 at [26]-[27], [36]. Further, the finding made on effective State protection contains a rejection of there being such a social group as alleged. 23 The rejection of the applicant's political opinion claim is somewhat more troubling. It was not part of his original claim but was advanced by his then migration agent before the delegate's decision and it was considered at the Tribunal hearing. It is apparently the case that the Tribunal's reasons embody one erroneous fact finding – i.e. as to the non-existence of a particular political party. Nonetheless, the Tribunal reached a conclusion on the character of the applicant's testimony which was open to it to reach – it was "unconvincing" and involved "mere assertion". The Tribunal can properly be said to have regard this claim as contrived. 24 While the Tribunal clearly considered that the migration agent's assertion (that the applicant was denied freedom to vote) had been "not pursued at the hearing" – a conclusion contested in the agent's contentions – I am unable to find in this a basis for setting aside the Tribunal's decision. The transcript of the hearing was not put in evidence, nor was affidavit material tendered to support the migration agent's contention. In this state of affairs I am unprepared to conclude that the Tribunal erred in what it said, let alone that it failed to consider an important aspect of the applicant's claim. CONCLUSION 25 My conclusion is that, notwithstanding the criticisms that can be made of the Tribunal's reasons, they do not disclose any want or excess of jurisdiction. 26 The application will be dismissed with costs. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. Associate: Dated: 6 September 2004 The Applicant appeared in person. Counsel for the Respondent: Mr M J Roder Solicitor for the Respondent: Sparke Helmore Date of Hearing: 25 August 2004 Date of Judgment: 6 September 2004