NAXG v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 400

FEDERAL COURT OF AUSTRALIA

NAXG v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 400

MIGRATION – appeal from Federal Magistrates Court – application for a protection visa – proposed amended notice of appeal – whether ground contained therein has reasonable prospects of success – whether material before the Tribunal raised a particular social group for consideration

Migration Act 1958 (Cth) s 36

Applicant S v Minister for Immigration & Multicultural Affairs [2004] HCA 25 considered
Dranichnikov v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 397 cited
NAGV and NAGW of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 6 cited

NAXG, NAXH and NAXI v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 1908 of 2004

BRANSON J
13 APRIL 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1908 of 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

NAXG
FIRST APPELLANT

NAXH
SECOND APPELLANT

NAXI
THIRD APPELLANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

BRANSON J

DATE OF ORDER:

13 APRIL 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed

2.The first and second appellants pay the respondent’s costs.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1908 of 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

NAXG
FIRST APPELLANT

NAXH
SECOND APPELLANT

NAXI
THIRD APPELLANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:	BRANSON J
DATE:	13 APRIL 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1. This is an appeal from a decision of the Federal Magistrates Court constituted by Barnes FM.  Her Honour dismissed an application made by the appellants for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) that affirmed a decision of a delegate of the respondent not to grant the appellants protection visas.

2. The appellants are a couple, each of whom is from Macedonia, and their daughter who was born in Australia in 2001.  The adult female appellant (‘the wife’) lodged an application for a protection visa in February 1998.  That application was refused and the refusal decision was affirmed by the Tribunal in April 1999.  On 28 September 2001 the appellants together lodged an application for protection visas.  On this application the male appellant was the principal applicant and the wife and their child applied as members of his family unit.  In these circumstances the success of the applications depended upon the decision‑maker being satisfied that the male appellant is a non‑citizen in Australia in respect of whom Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (‘the Convention’) (s 36 of the Migration Act 1958 (Cth) (‘the Act’); Dranichnikov v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 397; NAGV and NAGW of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 6).

   BACKGROUND

3. The claims made by the male appellant in the visa application were that Albanian terrorists had been terrorising the Macedonians by burning houses and killing and that, as an officer in the Macedonian reserve army, he would be kidnapped and killed by Albanian terrorists.  He also claimed that the wife’s former husband was one of the commanders of the Albanian terrorists and that he would fulfil his threats to kill the male appellant and his family if they returned to Macedonia.  He asserted that the police would not be able to protect them.

4. A delegate of the respondent concluded that the security situation in Macedonia had altered since the male appellant left Macedonia, with the consequence that he would be provided with effective protection should he return.  The delegate refused the application for protection visas on the ground that the male appellant’s fear of persecution was not well‑founded.

5. The decision of the delegate of the respondent was reviewed by the Tribunal.  Both of the adult appellants gave oral evidence before the Tribunal.  The written reasons for decision of the Tribunal reveal that the claims relied upon before it generally concerned the harm feared at the hands of the wife’s former husband.  The wife told the Tribunal that after she left her husband for the third time she was dissuaded by her parents from returning to him.  As sole custodian parent of their son, her former husband took him to Denmark where he is cared for by his aunt, with his father travelling frequently between Macedonia and Denmark.  The wife also told the Tribunal that her former husband learned immediately from her mother of the relationship that she had formed with the male appellant.  He had, she said, demanded that she return to him and threatened and assaulted her mother.  The wife said that she knew that her former husband was a commander of a terrorist group because people known to her family had seen him in a UCK (ie Albanian Liberation Front) uniform.

6. Before the Tribunal the male appellant claimed that he would be at risk of harm if he returned to Macedonia because he was now listed by the Albanian terrorists as a wanted person because of his ethnicity and his relationship with the wife.  He also claimed that the Albanians target military officers and he would therefore be at risk because he had been in the army reserve, with the rank of lieutenant, since he did his compulsory military service.

   DECISION OF THE TRIBUNAL

7. The reasons for decision of the Tribunal reveal that it sought independent evidence about the current situation in Macedonia and placed particular weight on an assessment made by the Human Rights Watch organisation.  The Tribunal concluded that –

   ‘… it appears that Macedonia is making a constructive effort to address some of its former wrongs (including entrenched discrimination against its minority populations) and that it is succeeding in this quest with the assistance of a number of overseas countries and organisations.  There has been particular attention paid to retraining the police force (and other security forces including the army) and to making them more representative of the population.’

8. The Tribunal was satisfied that the adult appellants had greatly exaggerated the situation in Macedonia and, indeed, it was satisfied that much of their evidence was exaggerated.  The Tribunal noted a number of inconsistencies in the evidence which was, the Tribunal concluded, more the result of their saying anything that they thought of than a deliberate concoction of deceit.  The exaggeration of the evidence and the lack of factual detail led the Tribunal to conclude that neither of the adult appellants was a reliable witness.

9. The Tribunal rejected as implausible the claim that the wife’s former husband had bashed members of her family.  It concluded its consideration of the claims concerning the wife’s former husband as follows:

   ‘In short, the Tribunal is satisfied that the applicant wife’s assertion that she and her partner and their daughter will be harmed by her ex‑husband if they return to Macedonia is an exaggerated one based on the ill‑will between herself and her ex‑husband.  It follows that the principal applicant’s claim that he and his family unit will be harmed by his partner’s ex‑husband on the basis of their ethnicity is not well founded.  On the basis of the independent evidence about the improvements in civil society (including within the police force) the Tribunal is satisfied that the State would be willing and able to offer protection if threats of either a personal or a racial nature were to be made.

   The Tribunal is not satisfied on the evidence before it that the claims about the ex‑husband being a commander of a terrorist group and threatening the applicants for reason of their ethnicity (or other Convention reason) are well‑founded.

   The man whom the applicant wife refers to as her ex‑husband’s commander (and to whom the principal applicant refers as an international terrorist) is Ali Ahmeti, about whom independent information is available in the usual research sources consulted by the Tribunal.  He was a political commander in the NLA before participating in the NATO‑sponsored peace talks in 2001 as the Chairman of the Co‑ordinating Council of Albanians in Macedonia.  He was amnestied in accordance with the rules laid out in the Ohrid Agreement and then formed the political party known as DUI which successfully became part of the coalition government in 2002 ….  There is ample information about him which the applicants could access and therefore present his name to the Tribunal, claiming that they know factually that he has personally commanded the ex‑husband.  Indeed, if this were true, then the applicants could rest easy, given that Ali Ahmeti has by example instructed his followers to choose legal political means to achieve their aims rather than guerrilla warfare and other terrorist tactics.

   In short, the Tribunal finds that the principal applicant’s claims that he and his family unit will be persecuted by the second applicant’s ex‑husband for reasons of their ethnicity and that the State will not be willing or able to protect them are not well‑founded.

10. As to the male appellant’s other claims, including his claim based on his status as an officer in the reserve army, the Tribunal concluded:

    ‘As there is no ongoing or current armed activity between ethnic Albanians and Macedonians (including those in the reserve forces), the Tribunal is satisfied that the chance that the principal applicant will be persecuted by Albanian terrorists for reasons of his ethnicity or membership of a particular social group (if army reservists can be so categorised) or any other Convention reason is remote.  In any case, the Macedonian State has shown itself willing and able to protect its citizens from such actions, even to the extent of calling in NATO and EU assistance when it felt the situation was beyond the scope of its own forces.

    The principal applicant has made no claims, nor does the evidence suggest, that harm – let alone harm amounting to persecution – has befallen him in the past for a Convention reason.  The chance that such harm will befall him in the reasonably foreseeable future is remote.  It follows that the Tribunal is satisfied that the applicant’s fear of persecution for a Convention reason is not well‑founded.  He is not a refugee.’

    JUDGMENT OF FEDERAL MAGISTRATE

11. The learned Federal Magistrate gave careful consideration to the decision of the Tribunal notwithstanding that the only ground upon which judicial review of that decision was sought was expressed as follows:

    ‘I was trying to get to do whatever it takes to protect my self and my family.’

12. Having regard to the submissions put to this Court it is relevant to note the content of [25] of the reasons for judgment of the Federal Magistrates Court:

    ‘The applicants took issue with the merits of the Tribunal finding in relation to State protection.  Again this does not establish any jurisdictional error.  The Tribunal findings in relation to effective State protection, which were principally findings of fact, were open to it on the material before it.  As is mentioned above and was reiterated to the applicants in the hearing, merits review is not part of the function of the court in these proceedings.  Whatever be the boundaries of jurisdictional error, it does not comprehend errors of fact as to the merits of the case put to the Tribunal (NAHI v MIMIA [2004] FCAFC 10 at [10]). Moreover the applicants’ disagreement with what the independent evidence relied on by the Tribunal said in relation to the situation in Macedonia does not establish a jurisdictional error. As set out above the weight to be given to such evidence was a matter for the Tribunal and the Tribunal findings were open to it on the material before it.’

    The Federal Magistrate concluded that the appellants had not demonstrated any jurisdictional error and accordingly their application must be dismissed.

    NOTICE OF APPEAL

13. A notice of appeal was filed by the male appellant personally.  It does not disclose any ground of appeal from the decision of the Federal Magistrates Court. 

14. On 1 March 2005 a solicitor filed a notice of appearance on behalf of the appellants.  When the appeal was called on for hearing, counsel for the appellants sought leave to file an amended notice of appeal.  The proposed amended notice of appeal includes only one ground of appeal as follows:

    ‘1.The learned primary Judge erred in not finding in the course of the review proceedings that the decision of the Refugee Review Tribunal made on 15 September 2003 should be set aside because:

    a.The Tribunal fell into jurisdictional error in its finding that the State would be willing and able to offer protection to the principal applicant and his family if threats of either a personal or a racial nature were to be made by the applicant wife’s ex‑husband.

    i.     the Tribunal relied on the country information referred to in the Decision to make this finding.

    ii.    The finding was one which which [sic] was not capable of being reasonably formed on the material before the Tribunal.

    iii.   The finding was made capriciously and arbitrarily.

    iv.   There was no evidence before the Tribunal which was probative of, or formed a basis from which the finding could be reasonably made.

    v.    There was no evidence of an appropriate criminal law, and the provision of a reasonably effective and impartial police force these being the minimum requirements for a finding as to the availability of State protection.

15. Counsel for the respondent argued that the appellants should not be granted leave to file the amended notice of appeal.  He contended that, in effect, the Court should not find that it was expedient in the interests of justice to allow the appellants to rely on a ground of appeal that called for consideration of issues not raised before the Federal Magistrates Court because the ground had insufficient prospects of success.  The argument of the respondent meant that it was convenient to allow the appellants to argue the appeal as though leave had been granted to file the amended notice of appeal and to rule on the application for leave to file the document at the time of final judgment.

    CONSIDERATION

16. The ground of appeal contained in the proposed amended notice of appeal seeks to challenge the decision of the Federal Magistrates Court only insofar as that decision deals with the claim that the male appellant feared harm to himself or his family from the wife’s former husband.

17. The first difficulty that stands in the way of the appellants being able to show that the ground of appeal contained in the proposed amended notice of appeal has a reasonable prospect of success is the Tribunal’s findings with respect to the credibility of the adult appellants.  Although the reasons for decision of the Tribunal are not expressed with complete clarity, I understand the Tribunal to have concluded that the wife had either made up, or seriously exaggerated, the claims concerning her asserted fear of her former husband.  The Tribunal noted inconsistencies and a lack of factual detail in the story told by the wife.  The Tribunal found that aspects of her story were implausible, such as her claim that her former husband had demanded her return after hearing of her new relationship or after that relationship had resulted in the birth of a child.

18. I understand the Tribunal, in the paragraph from its reasons for decision reproduced in [9] above, to have expressed its satisfaction first, that the male appellant and his family unit would not be harmed by the wife’s former husband if they returned to Macedonia and second, that the wife’s former husband is not a commander of a terrorist group.

19. The references made by the Tribunal to the availability of State protection in Macedonia were, as I read the Tribunal’s reasons for decision, secondary or alternative bases for the Tribunal’s satisfaction that the male appellant is not a person in respect of whom Australia owes protection obligations under the Convention.  That is, the Tribunal’s negative finding as to the appellants’ credibility essentially negated the need for it to consider the availability of State protection in respect of any threat from the wife’s former husband.

20. The conclusion of the Tribunal concerning the credibility of the adult appellants has not been shown to lack proper foundation.  In the circumstances it is not open to be reviewed by a court of law.  Even if it were, I am not satisfied that the Tribunal fell into jurisdictional error in finding that State protection would be available to the appellants in Macedonia.  The reasons for decision of the Tribunal disclose that it sought reliable independent evidence about the situation in Macedonia and concluded that particular attention had been paid to retraining the police and other security forces and making them more representative of the population.  In the circumstances, any error affecting the Tribunal’s conclusion that State protection would be available would, in my view, be an error within the Tribunal’s jurisdiction and not an error depriving it of jurisdiction to review the decision of the delegate of the respondent.

21. In any event, the only Convention ground upon which it was contended before this Court that the appellants have a well‑founded fear of persecution in Macedonia is their membership of a particular social group.  Counsel for the appellants contended that the Tribunal should have given consideration to whether the appellants had a well‑founded fear of persecution in Macedonia by reason of their membership of a particular social group, namely ‘spouse and family members of persons previously married to Albanian insurgency leaders’.

22. In Applicant S v Minister for Immigration & Multicultural Affairs [2004] HCA 25 Gleeson CJ, Gummow and Kirby JJ at [36] said:

    ‘… the determination of whether a group falls within the definition of “particular social group” in Art 1A(2) of the Convention can be summarised as follows.  First, the group must be identifiable by a characteristic or attribute common to all members of the group.  Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution.  Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large.  Borrowing the language of Dawson J in Applicant A, a group that fulfils the first two propositions, but not the third, is merely a “social group” and not a “particular social group”.  As this Court has repeatedly emphasised, identifying accurately the “particular social group” alleged is vital for the accurate application of the applicable law to the case in hand.’  (footnotes omitted)

23. It is not, I think, necessary to address whether a group defined in the way referred to in [21] above is ‘distinguishable’ from Macedonian society at large in the relevant sense.  It is sufficient to note that no case based on membership of a social group so defined was advanced by the appellants before the delegate, the Tribunal or the Federal Magistrates Court.  The case in fact advanced by the appellants was based on their alleged fear of one man, and perhaps his colleagues, because of the wife’s previous relationship with him.  It may be that their ethnicity was relied on as a factor contributing to their fear in this regard. Their lack of confidence in the protection offered by the State of Macedonia was said to be based on the fear that the Macedonian police have of Albanians or the absence from some geographic areas of government authority altogether.  However, the appellants did not claim that the Macedonian police withhold protection from spouses and family members of persons previously married to Albanian insurgency leaders.  Nor did they claim that the spouses and family members of persons previously married to Albanian insurgency leaders were, by reason of their membership of a group so defined, liable to persecution in Macedonia.  None of the evidence or other material before the Tribunal raised for its consideration the possibility that the appellants might fear persecution in Macedonia by reason of their membership of a particular social group constituted by family members of persons previously married to Albanian insurgency leaders.

    CONCLUSION

1. As the appellants did not have legal representation before the Federal Magistrates Court and were not required to formalise the grounds of their application to that court I consider that it is in the interests of justice to allow the appellants to file the amended notice of appeal.  However, the only ground of appeal contained therein has not been sustained.

2. The appeal will be dismissed with costs.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated:             13 April 2005

Counsel for the Appellants:	I Archibald
Solicitor for the Appellants:	Michaela Byers
Counsel for the Respondent:	G Kennett
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	8 March 2005
Date of Judgment:	13 April 2005