Alibanovic, Berin v Minister for Immigration and Multicultural Affairs
[1998] FCA 1190
•15 SEPTEMBER 1998
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 828 of 1998
BETWEEN:
BERIN ALIBANOVIC
ApplicantAND:
MINISTER FOR IMMIGRATION &
MULTICULTURAL AFFAIRS
RespondentJUDGE:
HILL J
DATE OF ORDER:
15 SEPTEMBER 1998
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
The application be dismissed.
The Applicant pay the Respondent’s costs.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 828 of 1998
BETWEEN:
BERIN ALIBANOVIC
ApplicantAND:
MINISTER FOR IMMIGRATION &
MULTICULTURAL AFFAIRS
RespondentJUDGE:
HILL J
DATE OF ORDER:
15 SEPTEMBER 1998
WHERE MADE:
SYDNEY
EX TEMPORE REASONS FOR JUDGMENT
Mr Berin Alibanovic applies to the Court for judicial review of a decision of the Refugee Review Tribunal, affirming a decision of the Respondent, the Minister for Immigration and Multicultural Affairs, through a delegate, refusing to grant to him a protection visa.
In that review, the Applicant relies upon s 476(1)(a), together with the provisions of ss 420(2)(b) and 430(1)(c) and (d) of the Migration Act 1958 (“the Act”).
The Applicant is a citizen of Bosnia, born on 3 May 1976 in Brcko, in Bosnia-Herzegovina. He set out his claims for a protection visa in a declaration accepted into evidence, which is set out, apparently in full, in the reasons of the Tribunal. It is unnecessary to repeat that material here, suffice it to say that as a young man he endured great hardship in a country replete with ethnic division, in which he was a Bosnian Muslim until ultimately he escaped and took refuge with Red Cross International in 1992, and moved, ultimately, to Switzerland in the same year.
Unfortunately, the Swiss Government did not permit him to stay permanently in that country and ultimately, in April of this year, he arrived in Sydney on a false passport. He feared that were he to be sent back to Bosnia, he would be prosecuted by the Serbian authorities. Independent evidence from a registered consultant, whose evidence was accepted by the Tribunal, showed that he suffered from post-traumatic stress disorder, and that he had a real fear for his well-being should he be returned to Bosnia, a fear which aggravated his disorder.
The Tribunal, in its reasons, dealt with what it referred to as, "independent evidence" of the situation in Brcko, a municipality in the Republika Sprska, left for later mediation under the 1995 Dayton Agreement. The Tribunal noted, by reference to material from UNHCR that repatriation to Brcko continued. It discussed also repatriation generally to Bosnia.
By reference to an Amnesty International report of this year, the Tribunal pointed out that those who relocated overwhelmingly chose to live in an area administered by authorities of their own nationality. Given what appears to have been a disastrous ethnic clash, desire to so do is hardly surprising. The Tribunal noted also that there were still problems relating to repatriation and relocation. It referred to a body of material, initiatives on the part of municipal authorities throughout the country and improved freedom of movement.
Under the heading “Findings and Reasons” the Tribunal accepted that the uncertain status of Brcko would lead the Applicant to be apprehensive about returning to that place and to fear harassment and intimidation. The Tribunal, however, concluded that while returning to that place might be difficult, it was not satisfied that any harassment to which the Applicant might be subject would amount to persecution, relying upon the UNHCR evidence for this conclusion.
Its ultimate finding was that the Applicant did not have a well founded fear of persecution within the meaning of the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees made applicable to the present circumstances by reference to ss 51 and 36(2) of the Act. As an alternative ground of decision, the Tribunal expressed the view that it would be open for the Applicant to relocate elsewhere in Bosnia if he did not wish to return to Brcko.
After stating the law, as expressed, inter alia, by Beaumont J in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451, the Tribunal noted that it had put to the Applicant the question of whether he could reasonably relocate to another part of Bosnia. The Applicant's response was that he feared punishment in other parts of Bosnia because he had escaped from military service, had fled the war and claimed that he would be considered to be an army deserter. The Tribunal rejected this answer to relocation, inter alia, because the Applicant's fear of military service did not arise because of a convention reason. The Tribunal also thought there was no independent evidence which suggested that the Bosnian Federation had punished any person for refusing to perform military service.
In the result, the Tribunal concluded that it was not satisfied that the Applicant was a person to whom Australia had protection obligations under the Convention as amended by the Protocol and affirmed the decision made by the delegate for the Respondent.
In his application for order of review, the Applicant referred to ss 476(1)(e) and 420(2)(b) of the Act suggesting that the Tribunal had erred in law in that it had assumed, without adequate evidence, that the existence of a Muslim controlled portion of Bosnia had satisfied the test in Randhawa for available internal protection.
Counsel for the Applicant conceded that it was not submitted that there was no evidence upon which the Tribunal could have based its conclusion on relocation. This concession was no doubt given in part at least because the material before me did not permit any conclusion to be drawn as to whether the evidence did or did not justify the findings which the Tribunal reached because the relevant documents filed with the Court were incomplete. Ultimately, the grounds of review were by leave amended to rely upon s 476(1)(a) and the obligations imposed upon the Tribunal, particularly in s 430(1) of the Act. It was submitted that the Tribunal had failed to observe the required procedures because it had rested its decision in part on the fact that the Applicant could be relocated, without finding facts as to whether Bosnia did afford, to persons in the position of the Applicant, State protection, so that it would not be reasonable to conclude that the Applicant could relocate to another area of Bosnia not being Brcko.
There are two difficulties in the path of the Applicant. The first is that the Tribunal initially concluded that the Applicant's fear of being persecuted for a convention reason was not well founded. Although counsel for the Applicant submitted that this conclusion was subsumed in the relocation issue, or otherwise infected with the same error as the relocation issue, with respect, it is an independent conclusion which the Tribunal reached. If, indeed, the Applicant's fears of persecution were well founded, then no question at all of relocation arises, so that the failure of the Tribunal, inter alia, to give appropriate reasons, or make appropriate factual findings on relocation, could not affect the ultimate decision.
The second, and equally difficult, problem for the Applicant lies in the relationship between ss 476, 430(1)(c) and (d) on the one hand, and the way in which the Applicant's case was run in the Tribunal. It is, I think, unfortunate, that the Applicant, like so many others in his position, was unrepresented when the matter came before the Tribunal. However, that is something that cannot be changed.
As I have already noted, the Tribunal asked the Applicant why he could not be relocated to some other part of Bosnia. The Applicant rested his case, not on the fact that persons in his position could not generally be relocated, but rather that he personally could not because of his having escaped military service. The question of military service is no longer in issue, it is conceded that that is not a matter which affects in any way the relocation issue. But what is important to note is that it was not an issue between the Minister and the Applicant or in any matter put to the Tribunal, that relocation was not reasonably possible in the sense that the cases, such as Randhawa, discuss the matter.
There is no doubt that the Tribunal, when it makes its decision on a review, is required by s 430 not merely to give reasons for its decision but also to set out findings on "any material questions of fact" and refer to the evidence upon which those findings and facts were based. Failure to comply with this requirement can be said to either involve an error of law and be thus reviewable, or alternatively, a failure to follow the appropriate procedures. It is important that the Tribunal comply with this obligation. The Applicant for review before the Tribunal must be advised in the Tribunal’s reasons, of the basis upon which an adverse conclusion against him or her has been reached, thus being in a position to decide whether there is some basis upon which that decision could be the subject of challenge by way of judicial review to this Court. But having said that, it is clear that it is not necessary that the Tribunal make findings in respect of every fact leading to a final conclusion. That is often expressed by the proposition that what is required to comply with sections such as s 430, is substantial compliance: Bisley Investment Corporation v Australian Broadcasting Tribunal (1982) 59 FLR 132 at 157; Ansett Transport Industries (Operations) Pty Limited v Wraith (1983) 48 ALR 500. In a passage cited with approval by Sheppard J in Brackenreg v Comcare Australia (1995) 56 FCR 335 at 349, Woodward J said in Ansett Transport at 507, speaking of analogous questions arising under s 13 of the Administrative Decisions (Judicial Review) Act 1977:
“The passages from judgments which are conveniently brought together in Re Palmer (1978) 23 ALR 196 at 206-7, serve to confirm my view that s 13(1) of the Judicial Review Act requires the decision-maker to explain his decision in a way which will enable a person aggrieved to say, in effect: ‘Even though I may not agree with it, I now understand why the decision went against me. I am now in a position to decide whether that decision has involved an unwarranted finding of fact, or an error of law, which is worth challenging.’
This requires that the decision-maker should set out his understanding of the relevant law, any findings of fact on which is conclusions depend (especially if those facts have been in dispute), and the reasoning processes which led him to those conclusions. He should do so in clear and unambiguous language, not in vague generalities or the formal language of legislation.”
It is not necessary here to endeavour to formulate a precise test of when questions of fact will be material in all cases. That, of course, will depend upon the issue which arises for decision. Where, in a case such as the present, there is no suggestion that re-location in general terms is impossible, but the only matter in contest between the parties arises out of an argument put in relation to military service, it cannot be said to be material to the ultimate finding whether relocation is possible for reasons not explained in evidence by an applicant, for that simply is not an issue that arises between the parties. An issue will only be material where it is necessary to decide that issue to resolve the difference between the parties in a dispute. Where the parties are not in disagreement, then it is hard to see how the issue should be given materiality. This would be particularly so when an alternative ground of decision has in any event been reached which makes the issue of relocation itself immaterial.
It is in any event not clear to me that the Tribunal necessarily merely made the assumption that State protection was available to the Applicant without any evidence to that effect. The fact that over the past few years there was a significant level of repatriation recorded in the literature to which the Tribunal referred would rather suggest that there was a level of State protection available, notwithstanding that individual areas were administered by persons of a particular ethnic background, that particular ethnic group being in the majority in the particular area. Be that as it may, it is unnecessary to discuss that issue further. The Applicant has not established that the Tribunal did not observe procedures which the Act required to be observed in connection with the making of the decision and accordingly the application must be dismissed. The Applicant must pay the Respondent’s Court costs.
I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill
Associate:
Dated: September 1998
Counsel for the Applicant: Mr S C Churches Counsel for the Respondent: Mr P Braham Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 15 September 1998 Date of Judgment: 15 September 1998
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