FEDERAL COURT OF AUSTRALIA AZABY v Minister for Immigration and Citizenship [2014] FCA 18 Citation: AZABY v Minister for Immigration and Citizenship [2014] FCA 18 Appeal from: AZABY v Minister for Immigration & Anor [2013] FCCA 1067 Parties: AZABY v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: SAD 255 of 2013 Judge: BESANKO J Date of judgment: 31 January 2014 Catchwords: MIGRATION – appeal from decision of the Federal Circuit Court of Australia – judicial review of decision of the Refugee Review Tribunal – jurisdictional error – whether Refugee Review Tribunal erred in its interpretation and application of "well-founded fear" in the definition of "refugee" in the Refugee Convention. Held: The appeal be dismissed. Legislation: Migration Act 1958 (Cth) s 65 Convention relating to the Status of Refugees Cases cited: Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 Minister for Immigration and Ethnic Affairs v Guo & Another (1997) 191 CLR 559 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259 Date of hearing: 22 November 2013 Place: Adelaide Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 31 Counsel for the Appellant: Mr S Ower Solicitor for the Appellant: McDonald Steed McGrath Lawyers Counsel for the First Respondent: Mr T Reilly Solicitor for the First Respondent: Sparke Helmore Lawyers IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION SAD 255 of 2013 ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA BETWEEN: AZABY Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: BESANKO J DATE OF ORDER: 31 January 2014 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the first respondent's costs of the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION SAD 255 of 2013 ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA BETWEEN: AZABY Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: BESANKO J DATE: 31 January 2014 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 This is an appeal from orders made by the Federal Circuit Court of Australia. On 12 August 2013, the Federal Circuit Court ordered that the appellant's application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") be dismissed and that the appellant pay the first respondent's costs in a fixed amount (AZABY v Minister for Immigration & Anor [2013] FCCA 1067). The Notice of Appeal contains two grounds of appeal. The second ground of appeal, which alleged certain errors in translation during the hearing before the Tribunal and therefore the denial of a hearing before the Tribunal, was abandoned by the appellant. The first ground of appeal alleges that the Tribunal erred in its interpretation and application of the words "well-founded fear" in the definition of "refugee" in the Refugees Convention and that the learned Judge of the Federal Circuit Court erred in law in failing to so conclude. That ground is pursued by the appellant and is the issue on the appeal. 2 The second respondent, the Tribunal, has filed a submitting appearance, save as to costs. background and the appellant's case 3 The appellant and his wife arrived in Australia on 9 December 2010 and, on 9 February 2011, they applied to the Department of Immigration and Citizenship for Protection (Class XA) visas under s 65 of the Migration Act 1958 (Cth) ("the Act"). Their applications were refused by a delegate of the Minister for Immigration and Citizenship. The appellant and his wife applied to the Tribunal for a review of the delegate's decisions. The Tribunal held a hearing and then on 22 March 2012 decided to affirm the decisions not to grant the appellant and his wife Protection (Class XA) visas. 4 On 19 April 2012, the appellant made an application for judicial review to the Federal Circuit Court. The appellant's wife was not a party to the proceeding before the Federal Circuit Court. The Federal Circuit Court Judge noted that the appellant's wife had applied for a Protection visa as a dependent member of her husband's family unit, but that may not be an accurate description of her application. However, that does not matter in terms of the issues before me. 5 As I have said, on 12 August 2012, the Federal Circuit Court made an order dismissing the appellant's application. 6 The appellant is a citizen of Albania. Although the appellant and his wife entered Australia on Italian passports, these passports were not issued in their names and they are not citizens of Italy. 7 The appellant claimed that there is a real chance because of his political opinion that, if he returns to Albania, he will be killed or seriously injured by the Albanian government led by Sali Berisha and by members of his Democratic Party, including the Police Chief, Arjan Hajati, and Zef Gjoni. He claimed that he was a member and an organiser for the PDK (Christian Democratic Party) political party from at least 2007, and that he was appointed as Commissioner for the PDK in the town of Bushat in both the local Bushat election in 2007 and in the general election in 2009, which meant that he was appointed as the official PDK scrutineer for both elections. The appellant claimed that he was threatened on election day in 2009. He claimed that he was threatened with a gun by Democratic Party members and by the Police Chief, Arjan Hajati, and Zef Gjoni. He was told that if he did not leave the election office he would be killed. He was also told that PDK would never win because it has a Christian agenda and they would kill all of them, driving them out of Albania. The appellant claimed that, as a result of these threats, he immediately left the village near Shkoder where he had been staying. He went to live in hiding near Tirane for a few months whilst he arranged for his wife to obtain an Italian visa. He claimed that after his wife obtained an Italian visa, they left Albania and travelled to Italy in September 2009. The appellant claimed that between September 2009 and December 2010, when he left Italy to come to Australia, he received many death threats. The appellant claimed that he left Italy shortly before new EU regulations came into effect, which would mean that Albanians did not need a visa to travel to Italy. He claimed that that would have made it easy for those threatening him to travel to Italy and kill him. the tribunal's decision 8 The Tribunal found that the appellant was not a credible witness. Having regard to the issues on appeal, it is not necessary for me to see out the Tribunal's reasons for this conclusion. 9 The Tribunal found that the appellant has been a member of the PDK political party, "at least at some time in the past". The Tribunal also accepted that the appellant may have held a role as an election commissioner (or scrutineer) for the PDK during the 2007 election. The Tribunal was unable to make a finding as to whether the appellant also held a role as an election commissioner (or scrutineer) for the PDK during the 2009 election. 10 The Tribunal said that, whether or not the appellant was an election commissioner (or scrutineer), it had doubts as to whether the alleged incident on election day in June 2009 in fact occurred. The Tribunal said that, even if "some version" of the election day incident did occur, the appellant subsequently acted in a way that was not consistent with a person who feared he would be killed or seriously harmed. The Tribunal found that the appellant was not involved in an incident on election day in June 2009 that caused him to fear that he may be seriously harmed. 11 The Tribunal found that, when the appellant was living in Italy between September 2009 and December 2010, he did not receive threats which caused him to fear that he may be seriously harmed, and that he did not leave Italy and travel to Australia in December 2010 because he feared being seriously harmed. 12 The Tribunal concluded that, there was not a real chance that, as a result of the alleged 2009 election day incident or alleged threats whilst he was in Italy, the appellant would be persecuted in the reasonably foreseeable future by the Albanian government led by Sali Berisha and by members and supporters of Berisha's Democratic Party, including the Police Chief, Arjan Hajati, and Zef Gjoni. 13 The Tribunal then turned to consider the appellant's other claims and potential claims. 14 The Tribunal first considered a claim based on the fact that it accepted that the appellant had been an active PDK member in the past and a PDK scrutineer during at least the 2007 election, and that he may wish to be involved in these types of activities if he returns to Albania. The Tribunal referred to country information and then found that the appellant had never had a high political profile in Albania. The Tribunal found that there was no real chance that the appellant would be persecuted in the reasonably foreseeable future because of his political activities for the PDK. 15 The Tribunal next considered whether there was a real chance that the appellant would be persecuted in the reasonably foreseeable future because of his anti-government political opinions, expressed through his attendance at protests and other means. The Tribunal found that the appellant still held political views strongly opposed to Sali Berisha and the Democratic Party led by him. By reference to country information, the Tribunal said that it accepted that an ordinary person with anti-government views could be seriously harmed when attending a rally or other political protests, but it did not accept that there is a real chance that such a person would be seriously harmed. The Tribunal answered the question identified at the beginning of this paragraph in the negative. 16 Finally, the Tribunal considered whether, if the appellant returned to Albania, there was a real chance the appellant would be persecuted in the reasonably foreseeable future because Socialist Party political opinions would be imputed to him. The appellant claimed that he associated with the Socialist Party after Sali Berisha had destroyed the PDK party. The Tribunal said that there was no evidence that the appellant would be associated with the opinions of the Socialist Party and answered the question identified at the beginning of this paragraph in the negative. 17 The Tribunal concluded that there was not a real chance that the appellant would be persecuted in the reasonably foreseeable future on the basis of the matters he identified. the decision of the Federal circuit court 18 The appellant submitted that the Tribunal misunderstood the "well-founded fear" of persecution test and that that could be inferred from the Tribunal's alleged misunderstanding of the significance or weight to be placed on findings as to whether acts of past persecution did or did not occur and that the Tribunal confused "probability" and "possibility" in considering the application of the real chance test. 19 The Federal Circuit Court Judge rejected the appellant's arguments by reference to the following matters. First, he concluded that the Tribunal had stated the real chance test correctly and said that it was applying it and that that was a factor to be taken into account. Secondly, he concluded that the Tribunal first considered whether the alleged past acts had occurred before considering whether there was a well-founded fear of persecution in the reasonably foreseeable future and that that was the correct approach. Thirdly, he concluded that the Tribunal had not misunderstood the real chance test because it had applied it to events which had not taken place in the past. Finally, he concluded that the Tribunal had not misapplied the real chance test by confining it to what would probably occur as distinct from what would possibly occur. issues on the appeal 20 The relevant ground of appeal is in the following terms: 1. The learned Judge erred when his Honour held: a. the Tribunal's "boilerplate" references to the meaning of "well-founded fear" supported a finding that it understood and had not misconstrued the legal meaning of that phrase in its decision; b. the Tribunal's consideration of the evidence of past persecution given by the Appellant was in accordance with the applicable law; c. the Tribunal's reference to the real chance test in paragraph [238] of its reasons did not amount to the application of that test to a non-existent event; d. a fair reading of the Tribunal's use of the term "possible" in respect of a possible chance of persecution did not indicate [it] had not misconstrued the legal meaning of a "well-founded fear" in making its decision; e. implicitly that there was thereby no basis to draw an inference from the Tribunal's reasons that the Tribunal misunderstood the meaning of "well-founded fear" and thereby committed jurisdictional error. The learned Judge ought to have held that, upon a reading of the Tribunal's reasons as a whole and taking into account the matter complained of in paragraphs (b), (c) and (d) above, the Tribunal misunderstood the meaning of "well-founded fear" and thereby committed jurisdictional error. 21 The Tribunal summarised the relevant principles relating to the definition of "refugee" in the Convention early in its reasons. In the course of that discussion, the Tribunal said (at [17]): 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 based on 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 per cent. 22 The appellant does not suggest that that is not a correct statement of the relevant principles. In fact, it seems to be based on passages in the reasons of Brennan CJ, Dawson Toohey, Gaudron, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Guo & Another (1997) 191 CLR 559 ("Guo") at 571-573 (see also Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 ("Chan") at 389 per Mason CJ; at 429 per McHugh J). The Federal Circuit Court Judge did not err in taking the Tribunal's statement into account. He did not treat it as decisive, but as something he should take into account in determining whether the Tribunal had understood the test and applied it correctly. 23 The Tribunal did consider whether the past events alleged by the appellant did in fact occur. That was because of the way in which the appellant presented his case. Whilst the ultimate question relates to what might happen in the future, it is trite to say that it is not an error to address past acts of persecution or threats alleged by an applicant: Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 at 498-499, [72]-[74] per Gummow and Hayne JJ. The Tribunal did address the ultimate issue of whether there was a real chance that the appellant would be persecuted in the reasonably foreseeable future. 24 The appellant submitted that the Tribunal had applied the real chance test to "events" which the Tribunal found did not occur and this indicated the Tribunal's confusion about the real chance test. He pointed to the following passages in the Tribunal's reasons (at [237]-[238]): To summarise, the Tribunal does not accept, for the reasons set out above, that the first applicant was involved in an incident on election day in June 2009 which caused him to fear that he may be seriously harmed, and that whilst the first applicant was in Italy from September 2009 to December 2010 he received threats which caused him to fear that he may be seriously harmed. The Tribunal therefore finds that if the first applicant returned to Albania there is not a real chance that as a result of the 2009 election day incident and/or the threats made against him whilst he was in Italy, he would be persecuted in the reasonably foreseeable future by the Albanian government led by Sali Berisha and by members and supporters of Berisha's Democratic Party, including the Police Chief Arjan Hajati, and Zef Gjoni. 25 There are a number of answers to this submission. First, the Tribunal left open the possibility that "some version" of the election day incident occurred albeit not one that gave rise to a real chance of persecution in the reasonably foreseeable future. Secondly, and more importantly, I think that the Tribunal is saying that, insofar as the appellant is basing his claim to refugee status on past acts, those acts did not occur (at least in the way alleged) and, therefore, there can be no finding of a real chance of persecution in the reasonably foreseeable future based on that part of the appellant's case. The Tribunal did go on to consider other ways in which the appellant's case was or might be put. I reject the appellant's submission. 26 Finally, the appellant submitted that the Tribunal misapplied the real chance test by excluding from it events which might occur in the future. He pointed to the following passage in the Tribunal's reasons (at [253]): The country information cited above indicates that elections in Albania continue to be accompanied by violent incidents. It is possible that an ordinary person with anti-government views could be seriously harmed when attending a rally or other political protest. However the Tribunal does not accept that there is a real chance that such a person would be seriously harmed. 27 There is no doubt on the authorities that the fact that the risk of an event occurring in the future is only possible and not probable does not mean that an applicant cannot satisfy the real chance test (see the references in Chan and Guo identified in paragraph [22] above). 28 If the Tribunal did exclude a possibility of persecution from the real chance test, then that would be an error except to the extent that the possibility may be fairly described as remote or insubstantial or far-fetched. 29 The relevant passage in the Tribunal's reasons must be read in context (Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259 at 272 and 280 per Brennan CJ, Toohey, McHugh and Gummow JJ). The Tribunal referred to country information to the effect that, at a political rally on 21 January 2011, four protesters had been shot dead. However, the Tribunal noted that that was after protesters turned violent. At the same time, the Tribunal noted that there was no evidence that particular people were targeted and there was no other evidence of political violence (other than the killing of the Socialist Party MP Fatmir Xhindi on 3 May 2009). Country information from the United States indicated that, with some exceptions, individuals "could freely criticise the government publicly or privately without reprisal". It seems to me that, in a context where the Tribunal has stated the relevant principles correctly, in order for the appellant to succeed he would need to show that on these facts, which were the facts found by the Tribunal, the proper conclusion was that there was a substantial as distinct from a remote chance of persecution occurring and that any other conclusion indicated a misunderstanding of the correct test. This the appellant has failed to do. I think it was open to the Tribunal to conclude, bearing in mind the Tribunal's findings by reference to the country information and the finding that particular people were not targeted, that the chance of persecution occurring was remote as distinct from substantial. 30 In my opinion, there is no error in the reasons of the Federal Circuit Court Judge. conclusion 31 In the circumstances, the appeal must 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 Besanko. Associate: Dated: 31 January 2014