SXPB v Minister for Immigration & Multicultural & Indigenous Affairs

[2006] FCAFC 11

FEDERAL COURT OF AUSTRALIA

SXPB v Minister For Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 11

Statutes

Judiciary Act 1903 (Cth) s 39B

SXPB and SXQB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL

SAD 214 of 2005

KIEFEL, KENNY and GRAHAM JJ
ADELAIDE
20 FEBRUARY 2006

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD214 OF 2005

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

SXPB
FIRST APPELLANT

SXQB
SECOND APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGES:

KIEFEL, KENNY, GRAHAM JJ

DATE OF ORDER:

20 FEBRUARY 2006

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The first appellant pay the respondents’ costs of the appeal.

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	SAD214 OF 2005

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

SXPB
FIRST APPELLANT

SXQB
SECOND APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGES:	KIEFEL, KENNY, GRAHAM JJ
DATE:	20 FEBRUARY 2006
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

THE COURT:

1. The appellants are mother and daughter, and citizens of Albania. They were unsuccessful in their applications for protection visas. The Refugee Review Tribunal (‘the Tribunal’) affirmed the Minister’s delegate’s decision not to grant the visas. The appellants applied to this Court for relief pursuant to s 39B of the Judiciary Act 1903 (Cth). Lander J dismissed their application.

2. The appellants’ case was that they feared that they would be kidnapped and sold into sexual slavery if they return to Albania.  The Tribunal had found that there was a social group defined as ‘Young Women in Albania’ and that it was targeted for kidnapping and trafficking.  The first appellant did not, however, fall into the group since she was a married woman and a mother.  The second appellant, her daughter, was a member of the group.

3. The Tribunal found that the second appellant did fear that she would suffer serious harm if she were to return to Albania.  As his Honour observed, this finding would not appear to have been open to the Tribunal in the absence of any evidence from the second appellant to that effect.  However, the Minister had not challenged the finding and his Honour considered it necessary to proceed with the matter on the basis that the finding was properly made.

4. The issue which remained, at least in connexion with the second appellant, was whether the Albanian Government would be able or willing to protect her from serious harm.  In that respect the Tribunal had addressed a report of the United States State Department which said that Albania had not fully complied with the minimum standards for the elimination of trafficking but that it was making significant efforts to do so.

5. The comments in the report concerning these international standards were considered by the Tribunal to refer specifically to the elimination of trafficking and not the protection which could be offered by the Government.  Since the Albanian Government had taken significant steps to address the issues of kidnapping and people trafficking in conjunction with international agencies, the Tribunal found that the appellants had failed to establish that the Albanian Government was unable or unwilling to protect the second appellant.

6. Counsel then appearing for the appellants argued before his Honour that the Tribunal decision was illogical.  His Honour rejected that submission.  The Tribunal’s acceptance that Albania had not fully complied with minimum standards for the elimination of trafficking was not inconsistent with a finding that it was in a position to offer an acceptable form of protection.  This ground was reiterated on the appeal.

7. There were no grounds of appeal referrable to the first appellant and no argument was advanced to show why the finding that she was not a member of the relevant social group was not open.  Clearly it was.  His Honour’s conclusion as to the Tribunal’s reasoning concerning the protection which could be afforded the second appellant is clearly correct.  No error has been disclosed.  On the hearing of the appeal the first appellant submitted that her and her family’s life would be difficult if they were required to return to Albania.  This is not, however, sufficient for the appeal to be made out. 

8. The appeal will be dismissed with costs.

I certify that the preceding eight (8) numbered paragraphs is a true copy of the Reasons for Judgment herein of the Honourable Justices Kiefel, Kenny, Graham.

Associate:

Dated:             20 February 2006

For the Appellants:	In Person
Counsel for the Respondents:	Mr Michael Roder
Solicitor for the Respondents:	Sparke Helmore
Date of Hearing:	20 February 2006
Date of Judgment:	20 February 2006