SBBD v Minister for Immigration - [2002] FMCA 342

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SBBD & ANOR v MINISTER FOR IMMIGRATION

[2002] FMCA 342

MIGRATION – Review of RRT decision – two applications heard together – protection visa – well-founded fear of persecution for reasons of religion – whether the Tribunal erred in law – whether the Tribunal acted bona fides – whether there was a foreseeable risk in the future.

Migration Act 1958 (Cth) s.474

Judiciary Act 1903 (Cth) s.39B

Sun Zhan Qui v Minister for Immigration & Ethnic Affairs (1997) 151 ALR 505

SAAG v Minister for Immigration [2002] FCA 547
Kan v Minister for Immigration [2002] FCA 923
Minister for Immigration v SBAN [2002] FCAFC 431

SBAP v Refugee Review Tribunal [2002] FCA 590

First Applicant:

Second Applicant:

SBBD

SBBE

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Nos:

AZ 211 of 2002

AZ 212 of 2002

Delivered on:

23 December 2002

Delivered at:

Sydney

Hearing Date:

17 December 2002

Judgment of:

Raphael FM

REPRESENTATION

Counsel for the Applicant:

Mr Collett

Solicitors for the Applicant:

Clark Lawyers

Counsel for the Respondent:

Mr Roder

Solicitors for the Respondent:

Sparke Helmore Solicitors

ORDERS

Applications dismissed.
Applicants each to pay the respondent’s cost assessed in the sum of $2000 in accordance with Part 21, Rule 21.02 (2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SBBD

AZ 211 of 2002

First Applicant

SBBE
AZ 212 of 2002

Second Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL
& INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

These two cases involve applications for review of a decision of the Refugee Review Tribunal in respect of decisions made on the

26 November 2001 and handed down on the 14 December 2001 not to grant protection visas to each of the applicants.
The applicants are brothers from the Kosovo region of the Republic of Serbia in the Federal Republic of Yugoslavia. They arrived in Australia around the 15 November 1999 and lodged applications for protection visas with the Department of Immigration & Multicultural & Indigenous Affairs on the 23 December 1999 (SBBE) and 24 December 1999 (SBBD). The delegate of the Minister rejected both applications and both applicants sought review by the Tribunal. The Tribunal arranged a hearing for both brothers on 8 November 2001. At [CB 155] of SBBD the Tribunal says:
“The Tribunal notes that SBBD and SBBE made identical applications for their protection visas. In SBBD’s application apart from the initial application and oral evidence he gave at the RRT, the balance of the relevant information has been provided in three statutory declarations submitted by his brother, via their adviser, and in submissions and materials provided by the adviser. That information is also submitted in SBBE’s own application. For that reason, the Tribunal’s recording of the respective claims is more or less the same.”
The case proceeded before me as if it were a joint case; hence these joint reasons for decision.
The applicants are sons of a farming family and originally lived in Zhub Gjakove, Kosovo. In February 1997 the family sold their land holding there and went to live in Bujanovac on the borders of Kosovo and Serbia proper. The family is of Albanian ethnicity and Catholic religion.
The applicants originally stated that in 1999 Serb militia and police entered the village, massacred their parents and burnt down the family home. The applicants escaped to Montenegro and then from there to Belgium. In a statutory declaration dated 31 March 2000 the applicants stated that in March 1999 their parents, concerned about the Yugoslavian authorities killing people arranged for the two brothers to escape to Belgium. They learned later that their parents had been killed. The discrepancy in these stories is dealt with at [CB 163] and was due to an interpretation error. The Tribunal at [CB 163] advised the applicant that: [All references to CB are in SBBE]
“It accepted that he is an ethnic Albanian from the FRY, that he fled his county of nationality in the face of Serbian atrocities directed at Albanians and that he had not been able to contact his parents and believed they had been killed.”
This finding is repeated at [CB 167] and [CB 175]. Although it is not said in terms, it would appear that the Tribunal accepted that at the time they left their native country the applicants had a well-founded fear of persecution for Convention reasons. The decision of the Tribunal revolved around the issue of whether or not the applicants faced a real chance of persecution and whether those fears were well founded and for Convention reasons as at the time of the hearing by the Tribunal.
The applicants contend that the Tribunal made three judicially reviewable errors:
(a)The Tribunal erred in law so as to misunderstand the true nature of its task.
(b)The Tribunal did not make its decision bona fide.
(c)In approaching the task of considering the current circumstances in the applicants’ country of nationality the Tribunal focused on immediate (and thus quite possibly short term changes) in circumstances and thus failed to concentrate on the future insofar as it was reasonably foreseeable.
In regard to ground (a) the applicants submit that in undertaking the exercise of comparing country information provided by the applicants with country information of its own, in order to ascertain the extent of the change to circumstances in the applicants’ country of origin, the Tribunal failed to consider the country information as a whole and assess the whole of the evidence critically. They alleged that the Tribunal attached a disproportionate weight to the country information that the Tribunal had found and only referred specifically to country information produced by the applicants for purposes which were inimicable to the applicants’ arguments. One of the documents put forward by the applicant is a CISNET report dated 21 June 2000 being a report from DFAT Belgrade on Kosovo Albanians. At [CB 108] there is a paragraph on the situation of Catholic Albanians in Kosovo. It says:
“While our information is not as comprehensive as that provided by UNHCR, we understand that ethnicity rather than religion has been the major determinant for safety or lack of it in Kosovo. The fact that Bosnian Muslims (Bosniaks) share the same faith as the majority Muslim Kosovar Albanians has not stopped the latter from seeking to expel the former from the province using violence and intimidation. That said, we can not exclude the possibility that animosities may exist between groups on the basis of religion. If true, then the small Catholic Albanian community would probably be at risk.”
The Tribunal deals with the applicants’ claims arising out their Catholicism at [CB 173 – 174] and relies upon a later report published by the US Department of State and the fact that “reports of harassment of Albanian Catholics are conspicuous by their absence” the applicants argue that the Tribunal does not comment on references to problems experienced by Catholics found at [CB 80, 81, 90, 98 and 154]. But the fact is that those references with the exception of one at [CB 80], which has already been dealt with, look at the situation of Catholics who are suspected of, or have been alleged to be in collaboration, with, Serbs. That is dealt with by the Tribunal in the middle of [CB 173].
A similar complaint was made in relation to two of the applicants’ subjective fear of persecution arising out of their being considered collaborators. Once again the applicants seek to make reference to country information provided by them which would indicate a danger to such persons. My reading of the decision, particularly at [CB171 and 172] is that the Tribunal did not dismiss this information but rather found that the applicants would not fall into any class of persons likely to be considered collaborators. This was because their family had suffered considerably at the hand of Serbs and in all probability that their parents had been killed. They left the area at an age when they were not liable to be conscripted into the KLA. It is not suggested that they or their relations traded with the Serbs.
I am not satisfied that the Tribunal attached a disproportionate weight to its information as opposed to that of the applicants. I think that the Tribunal did critically compare its own country information with the information provided by the applicants and came to a view upon it. This is the task of the Tribunal. It is not for some court to suggest that the Tribunal should have come to a different conclusion. Likewise, I do not see any evidence that the Tribunal misconstrued the country information which it relied on. It is suggested that this submission is proved by consideration of the references to military activity in the Bujanovac area by the Bujanovac Liberation Army. Again, my reading of the Tribunal’s reason for decision is that the Tribunal looked at the situation from an historical perspective around the time the applicants left Bujanovac and followed that situation through to a later time when the area became more peaceful. This would be a necessary task for the Tribunal in considering the existence of a well-founded fear of persecution for Convention reasons as at the date of decision.
It is alleged that the Tribunal ignored country information in the documents referred to by the Tribunal, which was in the applicants’ favour. One such is found at [CB 193] where the report indicates that many Serbian residents complain they feel insecure.
“Sporadic exchanges of fire between police and former Albanian fighters across the border with Kosovo create additional tension. A Serb car mechanic in Kosovo said, “I personally don’t feel threatened but most Serbs are alarmed.”
This report does not relate to the applicants’ home area, but it relates to Serbs not to Albanians. I am unable to find any piece of country information that makes a direct reference to a danger that might afflict the applicants that has been ignored by the Tribunal. Finally, the applicants argue that the Tribunal has appeared to misquote sources. This would not appear to be a matter which would ground judicial review.
The applicants quote the decision of Burchett J in Sun Zhan Qui v Minister for Immigration & Ethnic Affairs (1997) 151 ALR 505:
“A decision may sometimes by virtue of extreme disparity between it and the material on which it is based, or for some other reason, give a clear indication that it is based on some error or errors of law, even though no particular error is identifiable in the reasons of the decision maker. Davies referred to this matter in Eshetu at FCR 307. If the conclusion of actual bias should not be drawn, then I would conclude, upon the material to which I have referred, that the Tribunal Member erred in law so as to misunderstand the true nature if her task.”
The applicants submit that the errors made by the Tribunal in this case are of a similar nature. I have not found any errors. I am satisfied that the Tribunal did understand the nature of its task, which was to look at the situation of persons in the position of the applicants should they be returned to Kosovo or Bajanovac in the Federal Republic of Yugoslavia. The country information relied on by the Tribunal to come to the decision that the applicants did not have a well-founded fear of persecution for Convention reasons in those circumstances gives every appearance of being reasonably up to date and reliable. The country information provided by the applicants does not seriously challenge that upon which the Tribunal has relied. It is the job of the Tribunal to weigh up conflicting information and make a decision upon it. Provided that is not done in the absence of good faith the Tribunal has carried out its task.
I am likewise satisfied that the Tribunal considered the situation of the two applicants in the foreseeable future. The relatively peaceful situation in both Kosovo and the Banjanovac Valley has continued for approximately two years. No country information warns of an impending change in that situation. The Tribunal was entitled to come to a conclusion that the status of the area was stable and would remain so for the foreseeable future.
The applicants accept that even if I had found jurisdictional error in the way in which the Tribunal has come to its conclusion in respect of the matters discussed above, the errors would not be subject to review by this court because of the imposition into the Migration Act 1958 (Cth) of s.474 (the privative clause). The one area where the applicants are entitled to challenge the findings of the Tribunal is in relation to bona fides. In this regard the applicants say that all of the matters which I was asked to consider in relation to jurisdictional error also show that the Tribunal acted in bad faith in the making of its decision. They then make reference to what they describe as uncharitable assessments about each of the applicants. These are quoted as follows:
“Focuses shifted over the time it has taken to assess these claims”. [CB177.5]
“His Catholicism was not a significant aspect of his claim.” [CB 173.3]
The applicants cite in support of their claim the decision of Mansfield J in SAAG v Minister for Immigration [2002] FCA 547 at [30-36] and the decision of the Federal Court in Kan v Minister for Immigration [2002] FCA 923. The Full Bench of the Federal Court has recently considered the question of bias in three cases headed Minister for Immigration v SBAN [2002] FCAFC 431 [10] Heerey and Kiefel JJ say:
“Bad faith may manifest itself in the form of actual bias. Actual bias in this context is a state of mind so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or argument may be presented. It is something more than a tendency of mind or a predisposition.”
In SBAP v Refugee Review Tribunal [2002] FCA 590 Heerey J said at [49]:
“Good faith or what I think is the same thing, the absence of bad faith, is not a term of art. In the context of administrative decision making bad faith is a serious matter involving personal fault on the part of the decision-maker going beyond the errors of fact or law which are inevitable in any such process. As such it is not an allegation to be lightly made and must be clearly alleged and proved.”
The findings that I have made in this case are that the Tribunal acted appropriately in the manner in which it came to its decision. I am not satisfied that any jurisdictional error of a type reviewable under s.39B of the Judiciary Act 1903 (Cth) has occurred. It follows that I cannot make any finding of lack of good faith in coming to the very same conclusions.
I dismiss the application and order that the applicants pay the respondent’s cost which I assess in the sum of $2000 each in accordance with Part 21, Rule 21.02 (2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: