Borissov, Borislav Neofitov v Minister for Immigration & Multicultural Affairs

[1998] FCA 1521

FEDERAL COURT OF AUSTRALIA

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 557  of   1998

BETWEEN:

BORISLAV NEOFITOV BORISSOV
FIRST APPLICANT

MARIA LUBOMIROVA TCHAKALOVA
SECOND APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

DOWSETT J

DATE OF ORDER:

6 NOVEMBER 1998

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1. The application is refused.

1. The applicants are to pay the respondent’s costs of each application.

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 557 of 1998

BETWEEN:

BORISLAV NEOFITOV BORISSOV
FIRST APPLICANT

MARIA LUBOMIROVA TCHAKALOVA
SECOND APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:	DOWSETT J
DATE:	6 NOVEMBER 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

These are applications pursuant to s 475 of the Migration Act 1958 (Cth) for the review of two decisions made by the Refugee Review Tribunal on 15 May 1998. The applicants are Maria Lubomirova Tchakalova and Borislav Neofitov Borissov. As I understand it, they are in a de facto relationship and have been for a very long time. They are both citizens of Bulgaria and have been in Australia since 21 February 1995. On 2 May 1995 each lodged an application for a protection visa pursuant to the Migration Act 1958.  In order that a protection visa be granted to either applicant, it is necessary that the relevant authority be satisfied that each is a refugee as defined in the Convention Relating to the Status of Refugees.  This defines a refugee as any person who:

“..... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion 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 or who, not having a nationality and being outside the country of his former habitual residence, is unable or owing to such fear is unwilling to return to it.”

It was the applicants' case, in their submissions to the Department and to the Tribunal, and before me, that each of them has particular reason to fear harm in the event that they return to Bulgaria.  It is an integral part of that fear that they believe nothing to have changed in Bulgaria since the fall of the Communist regime.  They assert strongly that many of those who led the Communist regime are still in positions of financial influence, and therefore political influence.  They fear that corruption is widespread and that such corruption involves many of the former Communist Party officials.

They and their families have suffered in the past at the hands of the government in Bulgaria.  The Tribunal accepted that this was so.  In particular, the Tribunal accepted that in Mr Borissov's case, his family had suffered discrimination by confiscation of land which has not been returned.  In the case of Ms Tchakalova, it was accepted that she had not been allowed to participate in her chosen employment outside of Bulgaria and that she had been discriminated against in employment within Bulgaria.  However the Tribunal noted that they had been out of Bulgaria for some years.  The evidence upon which the Tribunal chose to act indicated that circumstances there had changed substantially during that time.

In particular, the party presently in political power is opposed to the party which is the successor to the old Communist Party.  The Tribunal did not conclude that the position in Bulgaria was without its problems.  It recognised continued difficulties with corruption, with an inadequately funded judiciary and uncontrolled criminal activities, but it concluded that there was no evidence to support the concerns expressed by the applicants that they would themselves be subjected to persecution, given their own backgrounds and previous activities.

With respect to Mr Borissov, the Tribunal identified three factual bases for his fears.  The first was that he and his family had previously been discriminated against, in particular in connection with land which had been confiscated and not returned.  The Tribunal found itself unable to infer that he would therefore be persecuted if he returned to Bulgaria.  In particular, the Tribunal saw no basis for inferring that because he had been active in demonstrating in support of the return of confiscated land to those from whom it had been confiscated, he might be subject to persecution.

Secondly, he said that he had been active in advocating workers' rights on behalf of Bulgarian workers employed by a Bulgarian company in Germany and feared reprisals.  This conduct occurred in 1995, and the Tribunal was unable to conclude that this was a basis for fear of persecution in the future.  In any event, such reprisals could not be described as caused by any of the identified causes, namely race, religion, nationality, membership of a particular social group or political opinion. 

His third concern was that his conduct since departing from Bulgaria led to his having a well-founded fear of persecution.   Again, the Tribunal was not convinced of this.  In argument before me, the applicants said that they had not intended to rely upon any fear based upon their conduct in this country. 

In the case of Ms Tchakalova, the Tribunal also identified three primary bases for her claim.  The first was the history of discrimination against her, apparently based upon her familial connections.  All of this conduct appears to have predated the advent of the present government.  Secondly, she claimed to have reported to the German government, whilst working in Germany, corrupt practices engaged in by her employer, a Bulgarian company.  The Tribunal concluded that the current government was unlikely to permit persecution because of such conduct or to participate in persecution based upon that conduct, as it had adopted, as a high priority, the combatting of crime and corruption.

The Tribunal also considered the effect of the applicant’s conduct in Australia but as I say, in submissions before me, the applicants disavowed that claim.  In any event, the Tribunal was unable to find any basis for inferring a well-grounded fear of reprisals for that conduct.

The applicants’ complaints about the Tribunal’s decision are as to factual matters.  The Tribunal, having regard to various sources available to it, has concluded that the present government of Bulgaria is unlikely to participate in persecution for any of the reasons which the applicants fear may lead to persecution of them.

Further, there is considerable difficulty in attributing any of the applicants' fears to the causes which are relevant for the purposes of the Convention.  Their submissions and the material suggest that their real concern is with the level of corruption in Bulgaria and the fear that people whose corruption they have exposed in the past may seek revenge.  This does not, in my view, constitute a reason of race, religion, nationality, membership of a particular social group or political opinion.  A conclusion to that effect is inherent in the Tribunal's decisions.

The applicants also pointed to what they said were factual errors in the reasons.  In particular, Ms Tchakalova explained that the reasons recorded that she had been retrenched from a job when in fact she had been dismissed.  I do not see that to be a matter of great significance in this case.  There were a number of other minor contentions as to factual matters, but they were largely as to matters of opinion rather than as to factual error.

The application for review does not itself identify anything which can be accurately described as an appropriate basis for reviewing the decision.  I have perused the material which has been provided to me and I have listened carefully to what has been said by the two applicants. I can find nothing therein to suggest to me that there is a permissible ground for reviewing the Tribunal's decision in either case.  In those circumstances the applications will be dismissed.

In the case of each application, the applicant is to pay the respondent's costs.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:             30 November 1998

The Applicants appeared in person.
Counsel for the Respondent:	Mr Reilly
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	6 November 1998
Date of Judgment:	6 November 1998