MZMOW v Minister for Immigration
[2004] FMCA 342
•19 February 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZMOW v MINISTER FOR IMMIGRATION | [2004] FMCA 342 |
| MIGRATION – Review of decision of Refugee Review Tribunal – application for a Protection visa – general fear of danger and insecurity – evasion of military service – no real chance of persecution for a Convention reason – fresh claim of conscientious objection – not articulated before Tribunal – no jurisdictional error – application dismissed. |
Judiciary Act 1903 (Cth)
Migration Act 1958 (Cth)
Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347
SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90
Parra v Minister for Immigration and Multicultural Affairs [2000] FCA 85
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
| Applicant: | MZMOW |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ 191 of 2003 |
| Delivered on: | 19 February 2004 |
| Delivered at: | Melbourne |
| Hearing Date: | 19 February 2004 |
| Judgment of: | Hartnett FM |
REPRESENTATION
| The Applicant in person |
| Counsel for the Respondent: | Mr Gilbert |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
That the application is dismissed.
That the applicant pay the respondent's costs fixed in the sum of $6500.00.
Pursuant to rule 21.15 of the Federal Magistrates Court Rules 2001 the Court certifies that it was reasonable for the parties to employ an advocate.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 191 of 2003
| MZMOW |
Applicant
and
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an ex tempore decision.
These proceedings commenced on 23 February 2003 by the applicant making application pursuant to section 39B of the Judiciary Act 1903 (Cth) and ss.475A, 477, 478 and 479 of the Migration Act 1958 (Cth) (“the Act”). That application was amended by amended application filed 24 November 2003. The amendments were only such as to include as particulars, those particulars of the claim which were said to be stated in the `facts and contentions’.
The applicant relied upon a document headed Facts and Contentions which had attached to it a letter from the Asylum Seeker Project Hotham Mission and from the Australian Red Cross. The respondent filed contentions of fact and law on 11 December 2003. A court book was filed by the respondent.
The applicant seeks review of a decision of the Refugee Review Tribunal (hereafter referred to as the RRT) dated 8 January 2003 and handed down on 31 January 2003.
History
The applicant is a national of the Former Republic of Macedonia (FYROM). He was born in 1953 and is an ethnic Macedonian and an Orthodox Christian. He arrived in Australia in 1996 on a Visitor’s visa. His wife and two daughters came to Australia in 1997. The applicant and his family overstayed their visas becoming unlawful non-citizens. Upon detection by the compliance section of the Department the applicant lodged an application for a Protection visa in 2002 (almost 6 years after arrival in Australia). The applicant's wife and two children were included in the application but did not make separate claims.
A delegate of the Minister rejected the application for a Protection class (XA) visa by the applicant and notified the applicant of such a decision by letter dated 13 September 2002. The applicant then applied to the RRT in application dated 23 September 2002. Oral evidence was given to the Tribunal by the applicant, his wife and one of his daughters on 7 November 2002 and its decision was handed down on 31 January 2003. The applicant then made application for judicial review to this Court.
In addition to the oral evidence given to the Tribunal, the Tribunal had before it the Department's file which included the Protection visa application and the delegate's decision record. The Tribunal also had regard to the material referred to in the delegate's decision and other material available to it from a range of sources including the Tribunal's file which included the application for review. The Tribunal also had available to it country information.
Only the applicant made specific claims under the Refugees Convention which is defined to mean the 1951 Convention Relating to the Status of Refugees and 1967 Protocol Relating to the Status of Refugees. Australia has protection obligations to people who are refugees as defined in the Convention and Protocol. Article 1A(2) of the Convention relevantly defines a `refugee’ as any person who:
owing to a 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 as a result of such events, is unable, or, owing to such fear, is unwilling to return to it.
The applicant claimed that he left the FYROM in 1996 because he could feel a war building up and there was a lot of ethnic tension. He said many of his friends were of different ethnicity, such as Albanians, Turkish and Greek, and he did not want to be in a position where he might have to fight his friends. He was fearful that he would be forced to fight in a military conflict and be required to kill or shoot at these different groups. He wished to evade military service. He expressed a general fear on behalf of himself and his family of the danger and insecurity in the country should they be required to return. He also raised concerns that his daughters could be killed at the airport because of bombings and said that they were settled and happy in Australia and would not have a good future if they were forced to return to the FYROM.
Before the Tribunal was a letter from DIMIA to the applicant dated 15 July 2002 which contained recent country information on the FYROM and stated, inter alia, that the country information might lead to the applicant's claims being rejected because there appeared to have been a cessation of the unrest in Macedonia and his fears of becoming involved in fighting against members of the Albanian and other minority communities in Macedonia appeared not to be well-founded. The applicant was offered by the Tribunal an opportunity to comment on that country information.
In addition, the Tribunal discussed with the applicant country information on the FYROM contained in the 2001 US Department of State Country Report on Human Rights Practices in the FYROM to the effect that as an ethnic Macedonian the applicant belonged to the dominant ethnic group and that although a range of problems existed in the FYROM, the country information indicated that the country’s internal situation had improved during that past year. The applicant was given an opportunity to comment on this country information.
The Tribunal discussed the contents of the applicant's Protection visa application claims with him noting where it did not accept his claims or where he had provided no evidence in support of some of them. The Tribunal noted to the applicant its understanding based on country information of the matters which the applicant raised and of other related matters.
The applicant's wife who gave evidence referred to the fact that in 1996 she had been present when her neighbour's house in Bitola had been stoned following which she had fled to her mother's home. In addition, houses and shops had been burned and the applicant's daughters had cried and been scared to go to school. The applicant's wife said she had not reported these incidents to any authority because police had been present, although they had been afraid to intervene in these instances.
One of the applicant's daughters gave evidence to the Tribunal that the family was scared to return to the FYROM and that she and her sister were content in school in Australia and wished to remain.
The Tribunal informed the applicant's daughter that while it understood her situation and that of her sister and was sympathetic to their concerns, considerations such as the fact that she and her sister were content in school in Australia and wished to remain in this country were outside the Tribunal's jurisdiction.
The Reasoning of the RRT
The main findings of the Tribunal are succinctly set out in the respondent's contentions and are as follows:
a)the internal situation in the FYROM had improved to the extent that it was now safe for the applicant and his family to return there;
b)there was no evidence that the applicant's daughters would come to the harm feared, particularly in light of the improved internal situation in the country;
c)neither the applicant, nor his wife and daughters, had suffered anything in the past of a serious adverse nature;
d)to the extent that the applicant feared any harm from ethnic Albanians, the chance of persecution from them was remote, given the improvement in the internal situation and adequacy of state protection;
e)the requirement of the applicant to undergo military service was a law of general application. If the applicant were to be punished for evading his military service by leaving the country, this was not persecution for a Convention reason. The authorities would not perceive him as having a conscientious objection or otherwise impute a political opinion to him such that he would receive an excessive punishment;
f)the applicant's claims that he would be required to shoot at different ethnic groups, and that there was no other reason why he would be called up, were not accepted;
g)there was a remote chance that the applicant would be required to fight members of the Albanian community;
h)the applicant departed the FYROM legally on his own passport. If his absence from the country caused problems, for example, it was interpreted as avoiding military service, these problems would not arise for a Convention reason;
i)any re-settlement difficulties the applicant and his family may face on return would not be Convention related;
j)the delay between the applicant's arrival in Australia and the lodging of his Protection visa application (almost six years) did not support a suggestion that the applicant was fleeing persecution in the FYROM to seek asylum in Australia.
[The Tribunal referred to the decision of Heerey J, in Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347 at 349:
The applicant complained of the Tribunal's taking into account the fact that the applicant did not lodge his application for refugee status until some 20 months after he had arrived in Australia and just prior to the expiration of his visa. In my opinion, this was a legitimate factual argument and an obvious one to take into account in assessing the genuiness, or at least the depth, of the applicant's alleged fear of persecution].
k)considering the applicant's claims, both individually and cumulatively, there was not a real chance that he would face persecution for a Convention reason should he return to the FYROM now or in the reasonably foreseeable future.
Consideration
The applicant was unrepresented in the proceedings. His written submissions broadly set out his complaints. Some of those complaints reiterated factual matters and others raised new factual matters and still others touched upon non-Convention related issues.
However, the applicant claimed in essence that the Tribunal failed to properly address the level of punishment the applicant would face for evading military service and failed to address the claims from the perspective of his wife and daughters. In the former the applicant raised the question of his conscientious objection to military service and in the latter the applicant referred to the effect of his possible imprisonment on his family in terms of `women at risk and the rights of the child’.
The applicant's submissions raised a matter not before the Tribunal, namely a claim that the applicant's father-in-law:
... commonly calls me and tells me during the night hours, sometimes the army police comes and asks for myself, MZMOW, to take me back to the reserve.
The submissions also raised for the first time that the applicant has made known publicly his objection to army service; that he has constantly voiced his concern about ethnic tension; and that more than simply evading military service, he has a conscientious objection to serving in the army. The respondent formally objected to the applicant relying on those fresh claims.
I determined that the applicant could not rely on fresh claims introduced into the proceedings before this Court. Although unrepresented, it was for the applicant to present his case to the Tribunal. In SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90 the Full Court of the Federal Court said:
It is well-established that all substantive issues raised by the evidence before the Tribunal must be considered even if an applicant does not articulate all such claims ... it is, however, no part of the Tribunal's function "to make good a case, which the applicant has not articulated, only because there is some evidence of elements of a claim” (Parra v Minister for Immigration and Multicultural Affairs [2000] FCA 85 at 13).
The applicant did not advance the present claims before the Tribunal.
On the factual material placed before the Tribunal and on the basis of country information it was open to the Tribunal to conclude that the applicant was not perceived as a conscientious objector, nor imputed with a political opinion. It was also open for it to conclude that any punishment the applicant might suffer for having avoided military service was the result of a law of general application and as such was not Convention related.
I accept the submissions of Counsel for the respondent that given these findings, the consequence for his family of the applicant's possible incarceration upon his return could not be Convention related. The issues of `women at risk’ and `the rights of the child’ do not stand alone as separate Refugee Convention claims. The applicant says that they are inextricably linked to his own claim. These aspects, therefore, depend on the finding on his own claim. The Tribunal found as against the applicant and thus there was no cause for the Tribunal to consider the position vis-a-vis the secondary applicants (see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 342 per Gleeson CJ and at 353 to 354 per McHugh, Gummow and Hayne JJ).
The applicant's wife and children did not otherwise make any Convention related claims. It is only the applicant who made specific claims under the Convention. That is consistent with the history of the Protection visa application, the applicant wife and children separately completing form D being persons not making refugee claims. In any event the Tribunal found, correctly I find, no persecution of them for a Convention reason.
I conclude that the decision of the RRT is not affected by jurisdictional error and that the application should be dismissed with costs.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Associate: Sophie Killen
Date: 19 February 2004
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