MZWDI v Minister for Immigration
[2005] FMCA 786
•24 June 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWDI v MINISTER FOR IMMIGRATION | [2005] FMCA 786 |
| MIGRATION – Review of decision of Refugee Review Tribunal – claim of conscientious objection – Macedonia – compulsory military service – question of credibility – application dismissed. |
| Judiciary Act 1903 (Cth), s. 39B Migration Act 1958 (Cth), ss. 36, 474 |
| Craig v South Australia (1995) 184 CLR 163 Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 Mashayekhi v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 381 Minister for Immigration & Multicultural Affairs v Yusef (2001) 206 CLR 323 Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 |
| Applicant: | MZWDI |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 218 of 2004 |
| Judgment of: | Connolly FM |
| Hearing date: | 7 June 2005 |
| Date of Last Submission: | 7 June 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 24 June 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr T. Fernandez |
| Solicitors for the Applicant: | T.A. Fernandez |
| Counsel for the Respondent: | Mr W.G. Gilbert |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
That the application filed 27 February 2004 be dismissed.
That the applicant pay the respondent’s costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 218 of 2004
| MZWDI |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This judgment arises from an application filed by the applicant on
27 February 2004 seeking judicial review of the decision of the Refugee Review Tribunal on 13 January 2004 to affirm the decision of the delegate of the Minister for Immigration and Multicultural Affairs to refuse to grant a protection visa.
The history
The applicant is a citizen of the Former Yugoslav Republic of Macedonia (‘Macedonia’/‘FYROM’). He is of Macedonian ethnicity and Orthodox Christian religion. He came to Australia on
17 November 2000 and lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural Affairs on 16 February 2001, under the Migration Act 1958 (Cth) (“the Migration Act”).
On 4 March 2002, a delegate of the Minister for Immigration and Multicultural Affairs refused to grant the protection visa; the applicant applied to the Refugee Review Tribunal (“the Tribunal”) for review of that decision on 18 March 2002.
The applicant claimed that he can not return to Macedonia as he fears persecution as a conscientious objector to military service. The applicant had completed one year of compulsory military service for the Yugoslav National Army. The applicant claimed that he did not want to be ‘rounded up’ by the Macedonian army (by reason of his military experience) because he had a political opinion which disinclined him from being involved in a fight against Macedonia’s ethnic Albanian rebels. The applicant claimed that his conscientious objection to being forced to join the Macedonian army to fight the Albanians would be considered very seriously by Macedonian authorities and the punishment would be severe. The applicant claimed his life would be in danger. The applicant also claimed to have impaired vision, which he said did not exempt him from such military service.
In its decision made on 13 January 2004, the Tribunal affirmed the decision of the delegate not to grant the protection visa. The Tribunal found that the applicant did not have a well-founded fear of persecution and was not a person to whom Australia had protection obligations under the Refugees Convention (as amended by the Refugees Protocol). Consequently the applicant did not satisfy the criterion under section 36(2) of the Migration Act for the purposes of a protection visa. Specifically, the Tribunal:
a)found that, in general terms, the applicant was not a credible witness;
b)did not accept that the applicant was a conscientious objector;
c)found that it was not plausible that the Macedonian army would force a visually-impaired man in his 40s to be engaged in military service against his will;
d)found that the applicant would be able to seek exemption from military service by reason of his age and visual-impairment, or if unsuccessful he could apply for a position as a cook or hairdresser for the army;
e)did not accept that the Macedonian army was forcibly recruiting ex-soldiers to fight against the Albanian rebels;
f)did not accept the applicant’s claims that Macedonian authorities had written to him and visited his home in relation to him undertaking military service;
g)did not accept that the applicant or his family had suffered serious harm amounting to persecution, and found that if the applicant returned to Macedonia he would not face a real chance of such harm;
h)found that the applicant was not of adverse interest to Macedonian authorities at the time of his departure; and
i)found that Macedonian authorities are able to provide effective state protection to the applicant, if required.
On 27 February 2004, the applicant lodged an application in this Court, being MLG 218 of 2004, pursuant to section 39B of the Judiciary Act 1903 (Cth), for review of the Tribunal’s decision. On 16 June 2004, the applicant filed an amended application and contentions of fact and law, asserting that the Tribunal had committed jurisdictional error. Summarily, the applicant claimed that:
a)the Tribunal made a finding of credibility against the applicant contrary to evidence or in the absence of evidence;
b)the Tribunal failed to consider conscientious objection in the context of the applicant’s claims and the political situation in Macedonia; and
c)the Tribunal failed to identify the nexus between the applicant’s claims and the Refugees Convention.
The respondent’s contentions of fact and law, which were filed on
20 August 2004, rebutted the applicant’s contentions, arguing that:
a)the Tribunal’s finding in relation to the applicant’s credibility was open to it and was a finding of fact;
b)the Tribunal “carefully and comprehensively considered each of the applicant’s claims” and did not misunderstand them;
c)the Tribunal understood that a conscientious objection could found a claim for refugee status under the Convention, however the Tribunal did not believe that the applicant was a conscientious objector;
d)the Tribunal did not misunderstand its function in relation to providing the applicant with an opportunity to supply further information to the Tribunal.
The Law
Section 36 of the Migration Act provides for the class of visas known as protection visas. The relevant protection obligation is defined in Article 33 of the Convention relating to the status of refugees which is required to be read in light of the definition of refugees in Article 1A. The Convention, which as amended, applies to a 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 as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
The term “well-founded fear of persecution” is affected by the provisions of section 91R of the Migration Act which provides as follows:
(1)For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
(b) the persecution involves serious harm to the person; and
(c) the persecution involves systematic and discriminatory conduct.
(2)Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person's life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill-treatment of the person;
(d) significant economic hardship that threatens the person's capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person's capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.
Following the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 a Tribunal decision would be reviewable if it were to be established that the Tribunal had exceeded its jurisdiction or constructively failed to exercise its jurisdiction. Section 474 of the Migration Act does not exclude consideration by the Court of decisions which involve a failure to exercise jurisdiction or which involve an excessive jurisdiction as such decisions are not decisions made under the Act for the purposes of section 474. Section 474 does not apply to decisions which involve jurisdictional error whatever the scope or extent of the jurisdictional error; see for example Minister for Immigration & Multicultural Affairs v Yusef (2001) 206 CLR 323 at 351.
An administrative Tribunal exceeds its power, and thus commits a jurisdictional error, if it identifies a wrong issue, asks itself a wrong question, ignores relevant material, relies on irrelevant material, or, in some circumstances, makes erroneous findings or makes a mistaken conclusion in a way that affects the exercise, or purported exercise, of the Tribunal’s power (Craig v South Australia (1995) 184 CLR 163 per McHugh, Gummow and Hayne JJ at 179). This is not exhaustive. Those kinds of errors may well overlap (see Minister for Immigration & Multicultural Affairs v Yusef (2001) 206 CLR 323).
Conclusions and findings
The applicant initially seeks to attack the adverse credibility findings of the Tribunal. The respondent contends that the capacity to set aside credibility findings is very limited. In Sellamuthu v Minister for Immigration & Multicultural Affairs (1999) 90 FCR 287, the Full Court of the Federal Court of Australia said at 294:
In many other cases the sole or substantial basis for judging whether a person falls within the Convention criteria for a “refugee” will be the information as to his/her supposed history and background furnished by an applicant. Upon a legally proper rejection of the credibility of an applicant in such a case, there will be no basis for requiring that the RRT do more than forthwith reject the claim for refugee status. There is no error disclosed.
Merkel J in Mashayekhi v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 381 at [9] summarised the decision of the Full Court of the Federal Court in Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547, as follows:
The Court observed:
* there can be no error of law where a tribunal makes findings on credibility issues that were open on the material before it after consideration of matters that were logically probative of the issue of credibility (at 552 and 559);
* the tribunal can be expected to be sensitive to the special considerations that arise in relation to assessing credibility of refugee claimants (at 557-559);
* ultimately, the tribunal’s role is to determine whether, on the totality of the material available to it, it was satisfied that the applicant is a person to whom Australia has protection obligations under the Convention (at 556).
The Tribunal’s decision, in my view, was open to it on the material before it. What the applicant sought to do was to argue that the applicant’s claim for refugee status was not properly identified and/or considered. Indeed, the credibility findings of the Tribunal are very much dependant on the question of conscientious objection. The Tribunal set out at page 130 of the Court Book [‘CB 130’], some four reasons why it did not accept that there was a conscientious objection:
Based on the facts that: the applicant did not raise this important claim until 10 months after he lodged his protection visa application; his evidence that he has never sought exemption from military service in FYROM; the facts that he completed military service in the Yugoslav National Army in 1978 and has undertaken additional military service several times a year until his departure for Australia; and that he has not claimed to have ever objected to such service or to have raised concerns about it with Yugoslav or FYROM authorities, the Tribunal does not accept that the applicant is a conscientious objector. It finds that he has fabricated his evidence in this regard in order to bolster his claims for a protection visa.
Essentially, that was a critical finding of fact for the Tribunal and a finding that was clearly open to it.
Once the applicant’s claim with respect to the conscientious objection failed, that really amounts to the end of his claim. Nevertheless, the Tribunal went on to consider other critical aspects and the other fundamental finding it made was that the authorities were not forcing ex-soldiers to join the army. The Tribunal found at [CB 130-131]:
The Tribunal has considered the applicant’s claim that FYROM authorities are collecting people to go to the army and forcing ex-soldiers to rejoin the FYROM Army to fight Albanian terrorists in particular. While based on country information the Tribunal accepts that ethnic tensions exist in FYROM between ethnic Macedonians and ethnic Albanians, it notes its advice to him in the hearing that it had not found any country information to support this claim but was willing to consider any relevant country information which he might care to provide post-hearing and that country information indicated the FYROM military was composed mainly of short-service conscripts, drawn from all ethnic groups. Based on the facts that the applicant did not provide any country information to support his claim and that sections of the U.S. Government country information outlines above (with which the applicant did not agree) indicate, inter alia, that on 13 August 2000 the FYROM Government negotiated a cease-fire with insurgents; that on the same date the ruling ethnic Macedonian and ethnic Albanian party leaders signed a Framework Agreement laying the groundwork for the preservation of a peaceful, unitary, multi-ethnic state with improved civil rights for minority groups; and that this Framework Agreement had been ratified by the FYROM Parliament which had also amended the country’s Constitution, as required by the peace agreement, to better protect citizens’ rights, the Tribunal does not accept that FYROM authorities are forcing ex-soldiers to rejoin the FYROM Army to fight Albanian terrorists in particular. In making this finding the Tribunal has taken into account its view, based on country information outlined above and conveyed to the applicant at the hearing, that the internal situation in FYROM had improved considerably during the past year.
Indeed this critical question as to whether he would be forced to join the army was fundamental to his whole claim, because if he wasn’t forced to join the army, the question of conscientious objection would not arise at all.
The applicant, in oral argument, referred to country information which clearly suggests that, notwithstanding the Framework Agreement, there were still difficulties and as a consequence the Tribunal should not have made the findings that it did, and in doing so that indicated it misunderstood the nature of its function. However, what the Tribunal was looking at in weighing up the country information was whether the applicant would be forced to join the army. It has referred, not only to the country information, but to the lack of country information, and because it is for the applicant to make out his case, the Tribunal was entitled to weigh up the lack of information that supported what the applicant was saying. These are findings of fact and matters which were open to the Tribunal.
There were a number of other aspects raised by the applicant (not referred to in the written contentions), including the issue of manifest unreasonableness. In my view there is absolutely no basis for any such contention. The Tribunal ultimately found at [CB 132]:
Taking into account the applicant’s claims, individually and cumulatively, the Tribunal finds that if he was to return to FYROM now or in the reasonably foreseeable future, there is not a real chance he would be persecuted for reason of his political opinion, a political opinion imputed to him or for any other Convention reason. The Tribunal finds that the applicant’s fear of persecution is not well-founded.
The decision of the Tribunal was open to it on the material before it. No question of error or jurisdictional error arises, and the application should be dismissed with costs.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Connolly FM
Associate: J. O’Brien
Date: 24 June 2005
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