Pepaj, Jani v Minister for Immigration & Multicultural Affairs [1998] FCA 1528

FEDERAL COURT OF AUSTRALIA IMMIGRATION – application for a protection visa – applicant fears being punished for breaching Albanian code of honour – whether applicant feared being punished for reasons of membership of a social group or for what he had done - whether applicant has well founded fear of persecution for purposes of Refugee Convention and Protocol –– whether applicant for a protection visa has an onus of proof WORDS AND PHRASES – "membership of a particular social group" Migration Act 1958 (Cth) – s36(2), Pt 8, s476, s481 Morato v Minister for Immigration, Local Government and Ethnic Affairs (1992) 39 FCR 401 – considered Applicant A v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 331 – applied Minister for Immigration and Multicultural Affairs v Zamora (Federal Court of Australia, Black CJ, Branson and Finkelstein JJ, 5 August 1998) – considered

JANI PEPAJ v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS SG 101 OF 1998 JUDGE: MERKEL J PLACE: MELBOURNE (HEARD IN ADELAIDE) DATE: 25 NOVEMBER 1998

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SG 101 of 1998

BETWEEN: JANI PEPAJ

Applicant

AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: MERKEL J

DATE OF ORDER: 25 November 1998

WHERE MADE: melbourne (heard in ADELAIDE)

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs of and incidental to the application. 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 SG 101 of 1998

BETWEEN: JANI PEPAJ

Applicant

AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: MERKEL J

DATE: 25 november 1998

PLACE: melbourne (heard in ADELAIDE)

REASONS FOR JUDGMENT

Introduction The Applicant, a citizen of Albania, applied for a protection visa on the ground that he satisfied the criterion for the grant of that visa specified in s 36(2) of the Migration Act 1958 (Cth) ("the Act'). The criterion is that the applicant for the visa be "a non citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol" ("the Convention"). For present purposes, Australia has protection obligations to the applicant under the Convention if he is a person who, owing to a well founded fear of being persecuted for reasons of membership of a particular social group is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country: see Art 1A(2) of the Convention.

Background facts The Refugee Review Tribunal ("the RRT"), whose decision is the subject of the applicant's application for review under Pt 8 of the Act, affirmed the decision of the delegate of the Minister not to grant a protection visa to the applicant. The applicant's claim for the visa was on the basis that if he returned to Albania he feared being persecuted for reasons of membership of a particular social group. The particular social group to which the applicant claimed to belong was loosely described as those persons who had breached the code of honour (said to be applicable to the applicant and the community to which he had belonged in Northern Albania) referred to as the "Code of Leke Dukagjini". The applicant claimed he faced punishment as a consequence of having breached the Code. The facts that were said to give rise to the breach of the code of honour arose from two separate situations. The first was that the applicant claimed he was betrothed to marry a woman in Shkodra in Albania. The betrothal had been arranged in accordance with tradition. The applicant decided he did not want to marry the woman and went to Greece instead. As a result the applicant claimed that he had offended the honour of the family of the woman and that that offence breached the ancient code of Leke Dukagjini which regulates marriage and certain matters of honour. The evidence given by him was that he would be killed because he had broken the engagement contract and the authorities were unable, or were unwilling, to protect him. The second situation was that since arriving in Australia the applicant had fathered a child to an Albanian woman outside marriage. It was contended by him that he would face persecution as an unmarried father if he returned to Albania. It was said that that conduct also offended the code of honour and brought dishonour on the mother's, and the applicant's, families. The applicant was represented at the hearing before the RRT and it was submitted on his behalf that he could be considered as a member of a particular social group of unmarried fathers, people who breach the code of honour, or as a separate group who fell into both categories which was said to be referred to in Albania as "The Living Dead".

The RRT decision The RRT identified as a critical issue before it, whether the claim made by the applicant was capable of constituting persecution for a Convention reason. Central to that issue was whether the particular social group asserted by the applicant was a social group for the purposes of the Convention. The RRT, after referring to a discussion of that issue in Morato v Minister for Immigration, Local Government and Ethnic Affairs (1992) 39 FCR 401; Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 and Applicant A v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 331 arrived at the following conclusions.

(a) Failure to marry the woman to whom he was betrothed The RRT concluded: "In relation to the applicant's first claim that he fears death because he has not honoured the promise that he marry the girl chosen for him, the Tribunal considers that this is something personal to the applicant. It relates to what the applicant has done and not what he is. His fear stems solely from his own actions. He is not jointly condemned because he is a member of a group of those who have not honoured their marriage promises or breached the "pesa". Rather he is condemned by the family of this girl for his specific actions. The Tribunal is satisfied he is being attacked for himself alone or what he has done. As a result this claim does not bring the applicant within the ambit of particular social group or within the operation of the Convention." The Tribunal did not give much weight to certain documents tendered by the applicant relating to the nature and extent of the risk to his life that he faced on his return to Albania. In rejecting that material the Tribunal said that it confirms that: "…if the applicant is at any risk, it is on account of what he has done and not because of some membership of a group, such as people who have breached the 'pesa'." (b) Unmarried father The central finding made against the applicant on this issue was that the RRT was not satisfied that the applicant: "has a personal fear of persecution in relation to [his] fathering of a child." The Tribunal added that it saw no reason why any person other than the family of the mother of the applicant's child and possibly the applicant's own family would harm him for what he had done. In those circumstances it was said that there was no threat from "the society at large". The RRT concluded that any harm that might be suffered: "would be on account of what the applicant has done and not because of membership of any particular social group." In the result, on each aspect of the claim, the RRT was not satisfied that the applicant was a member of a particular social group and concluded that any harm feared by the applicant would not constitute persecution for a Convention reason as it was no more than harm from those whose honour he had offended by what he had done. Grounds of review The main ground of review was that, so it was said, the RRT had wrongly applied the law to the facts and in particular had misunderstood the requirements of the Convention in respect of the characteristics of a "particular social group". In particular, it was contended that the RRT had misdirected itself in placing emphasis upon what the applicant had done rather than upon the group in society to which the applicant was identified as belonging. In Minister for Immigration and Multicultural Affairs v Zamora (Federal Court of Australia, Black CJ, Branson and Finkelstein JJ, 5 August 1998) at 5-8 the Full Court considered the authorities relating to a "particular social group" and concluded: "In our view Applicant A's case is authority for the following propositions. To determine that a particular social group exists, the putative group must be shown to have the following features. First, there must be some characteristic other than persecution or the fear of persecution that unites the collection of individuals; persecution or fear of it cannot be a defining feature of the group. Second, that characteristic must set the group apart, as a social group, from the rest of the community. Third, there must be recognition within the society that the collection of individuals is a group that is set apart from the rest of the community." Reference was made to authorities which have distinguished between harm threatened to a person by reason of what that person has done and harm threatened to a person as a consequence of membership of the social group to which that person belongs. Whilst it can be accepted that in some instances what a person does can be relevant to determining whether that person belongs to a particular social group, the ultimate issue is identification and characterisation, for the purposes of the Convention, of the social group to which the person is said to belong. In considering that issue in Applicant A, Dawson J (at 342) discussed the distinction drawn in Morato (at 404-405) where Black CJ said that the Convention requires that persecution be on account of "what a person is – a member of a particular social group – rather than upon what a person has done or does". Dawson J observed that the distinction on some occasions may be an unreal one and gave as an example: "the acts of conceiving and bearing a child may be what people do, but the result of those acts – that the persons involved are parents – is quite central to what they are." In my view what the above passages demonstrate is that the determination of whether the "social groups" to which the applicant claimed to belong were "particular social groups" for the purposes of the Convention and whether the applicant was threatened with harm for reasons of being a member of such a social group or merely for what he had done, were questions of fact for the RRT to determine. In stating that · the matters giving rise to the applicant's fear were "personal" to the applicant; · the matters feared did not relate to what "he is" but rather to what he had done; · any harm that the applicant may suffer or fear would come essentially from those whose honour he had offended rather than as a consequence of any societal or communal perception of him the RRT was explaining why it had arrived at its factual conclusion that the applicant did not belong to a particular social group and did not have a well founded fear of persecution for a Convention reason. I have not been persuaded by the submissions made on behalf of the applicant that in determining these questions of fact the RRT misdirected itself as to the applicable law or failed to apply that law correctly. Whilst there may be some force in the contention that undue emphasis was placed by the RRT upon what the applicant had done, that emphasis was in the context of the RRT indicating that the matters complained of and feared were essentially "personal" and were only applicable to the applicant by reason of what he had done. As a consequence, the RRT concluded that those matters were not sufficient to constitute him as a member of a particular social group for the purposes of the Convention and that he did not have a well-founded fear of persecution by reason of membership of any such group. It was also contended on behalf of the applicant that in another decision, acting on similar material to the expert evidence given in the present case, the same member of the RRT upheld a claim of persecution by an unmarried Albanian mother belonging to a particular social group of "unmarried mothers" in Albania. It was said that the two decisions were inconsistent and that somehow that inconsistency constituted an error of law. Reliance was placed on Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 634 at 639 where Brennan J said: "Inconsistency is not merely inelegant: it brings the process of deciding into disrepute, suggesting an arbitrariness which is incompatible with commonly accepted notions of justice." In my view the submission is misconceived. In the other case, the RRT acting on the material before it determined that unmarried mothers in Albania were a particular social group. In my view that conclusion is of no assistance to the applicant as the material before the RRT in the present case was different and related to a different social group. In any event I am not satisfied that the issue sought to be raised involves an error of law as was contended. There was however one matter of concern that I raised with the parties at the hearing. The RRT in the present case, relying upon a passage of Kirby J in Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567 at 596, said: "It is for the Applicant to persuade the Tribunal that all of the statutory elements are made out." It is well established that concepts such as onus of proof and burden of proof have no role to play before the RRT: see Immigration and Refugee Law in Australia, Mary Crock (1998) at 138 and 262 and the authorities there cited. What is required is that the RRT determine whether it is "satisfied" that the applicant for a protection visa is a refugee in accordance with the definition of a refugee as set out in the Convention : see ss36 and 65 of the Act and at 866.22 of the Migration Regulations. Thus the question is not one of onus but one of satisfaction as to whether the relevant criteria has been satisfied. Indeed, counsel for the Minister did not dispute these propositions. Rather, it was contended by counsel that a fair reading of the reasons for decision as a whole demonstrates that the RRT did not act upon the basis that there was any onus or burden of proof on the applicant to persuade the RRT that he was a refugee. In my view the submission on behalf of the Minister is correct. A fair reading of the decision indicates that the Tribunal considered the evidence before it and formed its own views on the evidence without the issue of onus or burden of proof arising or influencing its decision. In those circumstances, I am satisfied that the erroneous statement of the RRT, in that regard, did not result in an erroneous approach to the facts or issues to be determined by it. Accordingly, the decision did not involve an error of law as defined in s 476(1)(e) of the Act. Merely stating a legal principle incorrectly does not have the consequence that the decision itself involves an error of law or that there has been an incorrect application of the law to the facts found: see s 476(1)(e). In any event the jurisdiction of the Court to grant relief under s 481(1) is discretionary and I would refuse to exercise my discretion to grant relief in respect of the alleged error of law on the ground that it was not material to the decision made: see Nguyen v The Minister for Immigration and Multicultural Affairs (Federal Court of Australia, Merkel J, 16 October 1998) at 9-10 and the cases there cited. Conclusion For the above reasons I am satisfied that the grounds of review argued on behalf of the

applicant have not been made out and the application should be dismissed with costs. I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel

Associate: Dated: Counsel for the Applicant: Mr J A Gibbons

Solicitor for the Applicant: E A Hogarth Consultants

Counsel for the Respondent: Ms S Maharaj

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 19 November 1998

Date of Judgment: 25 November 1998