FEDERAL COURT OF AUSTRALIA SVRB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1176 MIGRATION – jurisdictional error – failure to exercise jurisdiction – whether Refugee Review Tribunal erred in failing to consider applicant wife's membership of a particular social group raised on the evidence. Minister for Immigration and Multicultural Affairs v Applicant S (2002) 70 ALD 354 cited HTUN v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 cited Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389 applied SVRB AND SVSB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS SAD 83 of 2004 LANDER J 9 SEPTEMBER 2004 ADELAIDE IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY SAD 83 OF 2004 BETWEEN: SVRB & SVSB APPLICANTS AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: LANDER J DATE OF ORDER: 9 SEPTEMBER 2004 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The application be allowed. 2. The decision of the Refugee Review Tribunal dated 26 February 2004 be quashed. 3. The matter be remitted to the Refugee Review Tribunal for further hearing according to law. 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 SAD 83 OF 2004 BETWEEN: SVRB & SVSB APPLICANTS AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: LANDER J DATE: 9 SEPTEMBER 2004 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 On 28 April 2004 the applicants issued proceedings out of this Court pursuant to s 39B of the Judiciary Act 1903 (Cth) seeking a declaration that a decision of the Refugee Review Tribunal (RRT) made on 26 February 2004 is invalid and of no effect, and an order that the matter be reconsidered by the RRT. 2 On 26 May 2004 the respondent filed a notice pursuant to O 54 r 4 and O 54B r 3 objecting to the jurisdiction of this Court to try this application for judicial review on the grounds that the application to this Court was not filed within 28 days of the notification of the Tribunal decision as required by subsection 477(1) of the Migration Act 1958 (Cth) (the Act). That objection was abandoned at the hearing. 3 An amended application was filed in Court at the commencement of the hearing. The amended application relevantly stated: 'The grounds of the application are: 6. The Tribunal has rejected evidence from the Applicants with an insufficient basis in evidence for such rejection, and the evidence put on by the Applicants was sufficient to make out their claim for refugee status. 7. The Tribunal failed to make a decision as to the existence of two relevant "particular social groups", being (a) Roman Catholics in Albania; and (b) Women in Albania without male protection, and further failed to assess whether the Applicant was a member of either group.' 4 Essentially, the applicants' case was jurisdictional error by reason of a constructive failure to exercise jurisdiction. 5 The applicants are husband and wife who are citizens of Albania. They arrived in Australia on 25 December 2002. On 10 February 2003 they lodged an application for Protection (Class XA) visas with the Department of Immigration and Multicultural and Indigenous Affairs under the Act. On 23 July 2003 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused to grant Protection (Class XA) visas. On 4 August 2003 the applicants applied for a review of that decision. 6 The RRT gave its decision on 26 February 2004. 7 The applicants made a joint application for the visa. However, the application depended for its success on an examination of the wife's circumstances. Insofar as the husband put forward an alternative case for refugee status, that is not pursued on this application. 8 I shall therefore refer to the wife as the applicant. If she is entitled to a Protection visa, so also would be her husband. 9 The applicant was born on 11 December 1963 in Rranca and raised in the Roman Catholic faith. Between 1971 and 1978 she attended school in Rranca and from 1979 to 1983 she attended school in Shkoder. In 1983 she commenced study for a tertiary qualification and in 1987 she obtained a degree in economy and finance from a tertiary establishment in Tirana. 10 Between 1987 and 1991 she was a finance officer for the agricultural enterprise of Bushat. Between 1991 and 1996 she was unemployed. However, in 1996, she again resumed employment as a finance officer for the Bushat Commune and she remained in that position until June 2002. Between 1992 and 2002 she lived in Beltoje. 11 The applicant husband was born on 29 March 1962 in Shkoder and he is also a Roman Catholic. He attended school in Beltoje from 1970 to 1978 and from 1978 to 1982 he studied in Lezhe. He underwent studies for a tertiary qualification between 1982 and 1986 when he obtained a degree in economy and finance from a tertiary establishment in Tirana. Between 1986 and 1991 he was a finance officer for the Bushat Commune. From 1991 to 1993 he was a finance officer for the Savings Bank in Shkoder. He became unemployed in August 1993 because of a blood feud. He lived in Vermosh between 1993 and 2002. 12 The applicant and her husband were married in August 1988 and they have two children, aged 12 and 9 years who are still living in Albania. The applicant and her husband did not live together in Albania after 1993. 13 The applicant said that her employment with the Bushat Commune included the responsibility of collecting rates and taxes in Kosmac, a town of about 2,000 people which is 95 per cent Muslim. It was her responsibility to approach recalcitrant taxpayers to persuade them to pay their taxes. If they did not pay she had the obligation to send their names to the Taxation Office who might send taxation officers to the house and confiscate items of value to meet the unpaid taxes. 14 In October 2001 she was approached by five men who said that they were from Kosmac and were angry with her. They told her that because she was Catholic she could not tell them what to do. The government could not tell them what to do. She could not make them do what she and the government wanted them to do. They told her that she would not work anymore. She said that they told her all Albanian women should be Muslims and should stay at home with their faces hidden. 15 She said that they became quite angry and the men hit her several times and pushed her to the floor. She telephoned the police but they did not arrive for about two hours, long after the men had left. 16 She was not able to tell the police the men's names until later when she found out two names of the men who had assaulted her. She informed the police who told her that they would try to find the people responsible but they would not be able to do much because the men were armed. She said the police told her to look after herself because they could not really help her because the men were like gangsters. 17 In January 2002, when returning home from work alone, she was confronted by the same five men who again attempted to intimidate her. They told her she should stay at home and wear a veil. They told her a Catholic should not come and work in their town. 18 They fired rifles at her feet and to the side of her. She was then beaten and kicked until she fell unconscious. 19 She was later helped by people who were passing and taken to her home where her neighbour called a doctor. The doctor needed to stitch a wound which had been caused by one of the men who had cut her on the leg with a bayonet. She refused to go to the hospital because she did not want to leave her children alone. She remained off work for a month and then had to return to work. The police were unable to help her. 20 On 5 June 2002 she saw the same five men walking towards her house, again armed with guns. They shouted at her that she was a Catholic and they were going to kill her family. 21 She said that they opened fire on her house. She heard explosions and felt tremors. Fortunately, neither she nor her children were injured. 22 She said that she did not report this matter to the police because the police were unable to give her or her family effective protection. 23 After this third incident, she did not return to work. The applicant went to live with relatives and she did not return to her home again. 24 The applicant decided to leave Albania because she thought she would be killed. She said that she travelled to Australia on a false passport. She left her two children with her relatives who were in hiding. 25 A statement was submitted from the applicant husband who stated that he had stopped working as an accountant in 1993 because his father had killed another person which had led to a blood feud with the victim's family. He went into hiding where he remained. 26 The applicant supported him until 5 June 2002 when she stopped working. 27 Statements were also submitted from a woman who asserted that she had witnessed the attack on the applicant in January 2002 and from a neighbour who said that he heard a loud noise, gun fire and an explosion near the applicant's house. 28 She also submitted a photocopy of a report from a newspaper dated 24 December 2002 which apparently provided a report in Albanian and English about the attacks on the applicant. On 2 July 2003 her migration adviser submitted a medical report by a doctor in Adelaide which said that she had a scar on her leg which was at least one year old. 29 The applicant accepted in her evidence that, generally, the relations between the different religious groups in Albania were amicable but she insisted that she had been persecuted because she was a Roman Catholic. 30 In her application for a protection visa she provided a statutory declaration in which she referred to the matters above and concluded: 'I fear persecution because of my religion and/or race. I believe that the police are unable or unwilling to offer us effective protection.' 31 She did not claim that she feared persecution because she was a woman in Albania without male protection. Nor did she assert that she feared persecution because she was an employee of local councils who are responsible for forwarding the bills of those councils and advising taxation authorities to follow up non-payment of the bills. 32 The applicant and her husband gave evidence before the RRT. Both the applicant and her husband made further submissions after the hearing. 33 The RRT accepted the applicant's evidence that she was assaulted in October 2001 and January 2002. Whilst it had reservations about the truth of her claim in relation to some aspects of the June 2002 incident, it stated it was prepared to put these doubts aside and accept that the incident did occur. The RRT found that the incidents amounted to persecution. 34 However, the RRT was not prepared to accept, and did not find, that the persecution arose out of her religion. The RRT found that whatever persecution she had suffered arose out of her employment, in particular, attempting to recover taxes. 35 It found that the Shkoder district where the applicant lived was the centre of Catholicism in Northern Albania and that Roman Catholics comprised 65 per cent of the population of that area. 36 The RRT was unable to find any reference to Catholics experiencing problems in Albania by reason of their religion. 37 It noted that the newspaper article which had been tendered did not refer to the applicant's religion as being a reason for the attacks but attributed her problems entirely to her work. 38 Whilst the RRT accepted that there has been some increase in support for fundamentalist Islamic groups, it was not prepared to accept that the Albanian authorities in a predominantly Catholic district would have allowed a group of Muslim men openly disrupting Catholic religious services, making threats against Catholic communities, and attacking Catholic women. 39 It accepted, for the purpose of its assessment, that the Convention did not require the applicant to prove that her fear was solely attributable to a Convention reason. It referred to s 91R(1)(a) of the Act and held: '… a Convention ground or grounds must constitute at least the essential and significant reason or reasons for the persecution.' 40 It found: 'Taking into account the above, the Tribunal concludes that the applicant wife's religion was not an essential and significant reason why she was harmed in the past. The Tribunal finds that the applicant wife has embellished her story to introduce religion as an element in her claims in order to bring them under the Refugees Convention. The Tribunal is satisfied that the applicant wife was harmed because her persecutors were angry at being sent bills by the local council and they identified the applicant wife as the representative of the local council responsible for sending them these bills and for advising the taxation authorities to follow up their non-payment of the bills. The Tribunal finds that the applicant wife's persecutors were motivated to harm her because they perceived her to be the individual who had caused difficulties for them and they wished to punish her for her actions. The Tribunal finds that the harm experienced by the applicant wife was not for a reason which comes under the Refugees Convention.' 41 Moreover, the Tribunal did not accept that the Albanian authorities were unwilling or unable to protect the applicant. It noted that, in fact, the police did respond to the attack in October 2001. It noted that, although she claimed she notified the police after the attack in January 2002 and claimed that they did nothing, her description of the incident was of being taken home and being attended by the doctor and there was no mention of the police being called. It noted that she admitted that she did not inform the police about the attack on her house in June 2002. 42 In particular, the RRT found: 'It appears to the Tribunal that the police did not arrest the people who attacked the applicant wife in October 2001 because at the time she was unable to identify her attackers. The Tribunal is not satisfied from the information she has provided that the applicant wife did request further assistance from the police. The Tribunal does not accept that the police would have been unable or unwilling to protect the applicant wife if they had been requested to do so. There is nothing before the Tribunal to suggest that the police would have been unwilling to protect the applicant wife for a reason which comes under the Refugees Convention.' 43 It dealt quickly with the applicant's husband's claim in relation to the blood feud. It noted that that blood feud had originated in a land dispute and no Convention basis for the feud was advanced. The RRT followed the decisions of Merkel J in SDAR v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1102 and von Doussa J in SCAL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 548 which was approved by the Full Court in SCAL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 301. 44 In respect of the husband's claims in relation to the blood feud, the RRT said: 'Taking into account the above, the Tribunal accepts that the harm experienced by the applicants in the past because of the blood feud was for reason of their membership of a particular social group comprised of their family. However, the Tribunal finds that s.91S prevents the applicant husband's membership of his family being used as a vehicle to bring him or his wife within the scope of the Refugees Convention because the persecution or fear of persecution is motivated by a non-Convention reason. Therefore the applicants do not have a well-founded fear of persecution for reason of their family membership.' 45 It found that the applicants were not persons to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol and therefore the applicants had not satisfied the criterion in s 36(2)(a) of the Act, or the alternative criterion in s 36(2)(b) of the Act. It affirmed the delegate's decision. 46 On this application the applicant has argued that the RRT fell into error because it failed to find that the applicant was a member of a particular social group comprised of Roman Catholics in Albania or, alternatively, Women in Albania without male protection. She argued those claims were not addressed by the RRT. 47 She has also seized upon the finding in [40] above and argued that the RRT failed to consider whether she feared persecution because she was an employee of local councils who are responsible for forwarding the bills to councils and advising taxation authorities to follow up non-payment of bills. In other words, she relies upon the RRT's own finding for claiming to be a member of a particular social group. She claims that as a member of that particular social group she is subject to persecution. 48 The applicant argued that, notwithstanding the absence of any claim in her application that she was a member of any particular social group apart from Catholics in Albania, the RRT had an obligation to consider whether she was a member of some different social group. She relied on Minister for Immigration and Multicultural Affairs v Applicant S (2002) 70 ALD 354 at 371 per Stone J: '[73] It is well established that the tribunal should not limit itself to the case articulated by an applicant where the facts found by it (or, as Sackville J stated in NAAT v Minister for Immigration and Multicultural Affairs [2002] FCA 332; BC200201172 at [43], not negated by its findings) might support an argument that the applicant is entitled to the protection of the Convention: Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28; 56 ALD 1; 160 ALR 24; Saliba v Minister for Immigration and Ethnic Affairs (1998) 89 FCR 38; 159 ALR 247. In this case, however (unlike the position in Khawar), I can find no trace of any evidence before the tribunal that would support a claim that Afghan society perceived young, able-bodied men as comprising a separate group either as a result of the Taliban's recruitment process or for any other reason. In my view there is nothing to distinguish this case from that considered by the Full Court in Applicant Z. [74] Although the tribunal may initiate additional inquiries (s 424 and s 427(1)(d) of the Migration Act 1958 (Cth)) it is not required to do so. Comments to the contrary in Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155; 7 ALN N79b; 65 ALR 549 and Luu v Renevier (1989) 19 ALD 521; 91 ALR 39 are not relevant here for reasons explained in Kola v Minister for Immigration and Multicultural Affairs [2002] FCAFC 59; BC200200885 and NAAT v Minister for Immigration and Multicultural Affairs [2002] FCA 332; BC200201172. In my view the tribunal cannot be in error in failing to come to a conclusion that is not supported by the material before it.' See also North J at [53]. 49 She also referred to the dicta of Merkel J in HTUN v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at [13]-[14]: '[13] The tribunal's approach to this issue might be explained by the manner in which the appellant put his case. However, unlike in an adversarial proceeding, the tribunal cannot limit its determination just to the case articulated by an appellant if the evidence and material which it accepts, or does not reject, raises a case on a basis not articulated by the appellant: see Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63; 160 ALR 24; Satheeskumar v Minister for Immigration and Multicultural Affairs [1999] FCA 1285; BC9906374 at [15]; Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293-4; 58 ALD 30 at 36; Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at 180; and Giraldo v Minister for Immigration and Multicultural Affairs [2001] FCA 113; BC200100400 at [58]-[59]. In any event, on a fair reading of his evidence before the tribunal, the appellant based his claim on his activities in Burma and Australia. [14] Accordingly, the tribunal failed to conduct its review in accordance with the duties imposed upon it under the Act and therefore constructively failed to exercise its jurisdiction or ignored relevant material: see s 476(1)(b) and (c) and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; 180 ALR 1; 62 ALD 225 at [81]-[83]. Put another way, the tribunal "should have examined, but did not examine" the issues to which I have referred and thereby fell into jurisdictional error: see Abebe v Commonwealth (1999) 197 CLR 510 at 537; 162 ALR 1 at 19; 55 ALD 1 at 19 per Gleeson CJ and McHugh J.' 50 She argued that because the RRT failed to make a finding as to the existence of the particular social group to which the applicant belonged, the RRT had committed an error going to jurisdiction because the RRT had failed to exercise jurisdiction. 51 Next, it was argued that the RRT had fallen into error in failing to accept that the Albanian authorities might be unable or unwilling to protect someone in the applicant's position. It is enough in answer to this submission to note that it simply goes to the merits of the decision by the RRT. 52 Lastly, it was argued that the RRT failed to make a finding as to the existence of a particular social group of women in Albania without a male protector which, again, was a jurisdictional error. No claim of this kind was advanced before the RRT. It cannot be an error on the part of the RRT let alone a jurisdictional error where the RRT does not address an argument that was never put. 53 In my opinion, the application before the RRT insofar as the applicant relied upon her religion did not depend upon the applicant being a member of a particular social group. Her case before the RRT was simply that she was persecuted by reason of her religion. 54 If that claim had been accepted, she did not need to establish that she had been a member of a social group, Roman Catholics in Albania. If she had been persecuted because of her religion, she would have been entitled to claim refugee status because she would have established the necessary elements under the Refugees Convention as amended by the Protocol and thereby would have established the criterion under s 36(2) of the Act. 55 In the alternative, if it were necessary to make a finding whether the applicant was a member of that particular social group, the applicant's claim was bound to fail. That is because she would not have been able to establish that membership of that particular social group was the cause of the persecution in the same way as she could not establish that she had been persecuted because of her religion. 56 In my opinion, the RRT dealt with that aspect of the case advanced before it, which was that the applicant was a Roman Catholic and therefore an adherent to a minority Christian religion in a largely Muslim country. 57 The RRT accepted that she had been persecuted, but not by reason of her adherence to her religion. That was an end of the matter insofar as her claim rested upon persecution by reason of religion. 58 In her amended application, the applicant claimed that the RRT fell into jurisdictional error by failing to enquire into whether she was a member of another particular social group, Women in Albania without male protection. 59 During the hearing before the RRT, the applicant, in answer to a question from the member in the following terms, said: 'MEMBER: I really have problems with that argument. I mean, the fact is there are thousands of professional Catholic women, particularly in the Shkoder area who carry out their jobs without being harmed because of their religion. I really think it most unlikely that you would be followed around wherever you went. APPLICANT: Maybe, because I didn't have any support or anyone to help me around because my husband wasn't there and also my relatives weren't around me. Maybe they have found me as a weak person with no support.' 60 Later, she was asked and answered: 'MEMBER: It seems, now you are saying, it's not because of your religion, it's because you are a woman who doesn't have support that these people would go for you? APPLICANT: That's my belief, they didn't say so but that's my belief and I think maybe maybe I was by myself that I was a woman … maybe that if someone had told me that they were doing those things because that's my opinion surely … maybe because I was lonely.' 61 Later, in answer to a further question the applicant said that she was isolated. 62 The applicant established to the satisfaction of the RRT that she was a woman in Albania who had been subject to persecution. 63 In my opinion, those questions and answers squarely raised before the RRT whether the applicant was a member of a particular social group, namely, Women in Albania without a male protector. 64 Once that matter was raised the RRT was under an obligation to determine whether the applicant belonged to a group of persons of the class to which she claimed to belong and whether that was capable of constituting a social group: Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389. 65 The RRT referred to the applicant's evidence that her attackers saw her as a weak person and that she had no-one to support her but made no further inquiry as to whether the applicant could claim to be a member of a particular social group. 66 In my opinion, the RRT had an obligation to enquire into whether the applicant was a member of a particular social group of the kind to which the applicant claimed in her evidence, especially where the RRT was satisfied that the applicant had been subject to persecution. 67 In my opinion, the RRT fell into jurisdictional error by failing to exercise its jurisdiction. 68 In those circumstances, I do not need to consider whether or not the RRT also had an obligation to enquire into whether the applicant was also a member of the particular social group advanced for the first time on this application, namely, an employer of local councils who are responsible for forwarding the bills to councils and advising taxation authorities to follow up non-payment of bills. There does not appear to be any evidence of the existence of such a social group or any claim that she was a member of such a social group. Moreover, that claim was somewhat different to the previous claim which I have considered in that it was advanced for the first time on this hearing as a result of the finding of the RRT. In any event, I do not need to decide that matter. 69 In my opinion, the decision of the RRT should be quashed and there should be an order remitting this matter to the RRT for further hearing according to law. I certify that the preceding sixty nine (69) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander. Associate: Dated: 9 September 2004 Counsel for the Applicants: Dr S Churches Solicitor for the Applicants: Jane Nunan & Associates Counsel for the Respondent: M Roder Solicitor for the Respondent: Sparke Helmore Date of Hearing: 3 September 2004 Date of Judgment: 9 September 2004