SZBHQ v Minister for Immigration
[2005] FMCA 992
•13 July 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBHQ v MINISTER FOR IMMIGRATION | [2005] FMCA 992 |
| MIGRATION – Review of decision of RRT – Whether the Tribunal failed to consider the claims of the applicant with reference relevant country information – whether the applicant’s claim was apparent on the face of the material before the Tribunal – whether the Tribunal failed to consider that the applicant’s claim was connected to a Convention reason. |
| Dranichnikov v Minister for Immigration [2003] 197 ALR 389 NABE v Minister for Immigration (No. 2) [2004] FCAFC 263 |
| Applicant: | SZBHQ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 1704 of 2003 |
| Judgment of: | Raphael FM |
| Hearing date: | 13 July 2005 |
| Date of Last Submission: | 13 July 2005 |
| Delivered at: | Sydney |
| Delivered on: | 13 July 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Joseph |
| Counsel for the Respondent: | Ms R Francois |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
Application dismissed
Applicant pay the respondent’s costs including the costs of $1,800 previously ordered.
Costs of the substantive hearing to which the $1,800 is to be added assessed at $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1704 of 2003
| SZBHQ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Yugoslavia. He arrived in Australia on
16 October 2000. On 13 February 2003 he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 31 March 2003 a delegate of the Minister refused to grant a protection visa and on the same day the applicant applied for a review of that decision. The applicant was represented by a migration agent and accepted an invitation to attend a hearing before the Tribunal. On 22 July 2003 the Tribunal determined to affirm the decision not to grant a protection visa and handed down that decision on 19 August 2003.
The factual circumstances which raise the applicant's claim to have a well founded fear of persecution for the Convention reason of political or imputed political opinion are as follows. The applicant was a professional soldier in the army of the former Federal Republic of Yugoslavia. On 3 April 1999 he was part of a troop in action on the Petrovaradin side of the Danube River. He claims that under the orders of his commanding officer his section was required to go to a farmhouse in which it was suspected that spies were operating. When they arrived at the farmhouse they discovered that it was occupied by a couple and a young child about seven years old and a baby. The applicant alleged that the commanding officer ordered him to kill the family. The applicant objected. He describes the incident in considerable detail. He alleged that as a result of his objections his commanding officer yelled at him and hit him on the back of the head with the butt of a rifle. The fell to the ground and was beaten. He passed out and was eventually taken to a military hospital by his colleagues. Because of this incident the applicant deserted the Yugoslav Army and went into hiding first in Bosnia and then in Greece before coming to Australia.
The applicant claimed that the commanding officer was still in the Yugoslav Army and had reached a very high position. He believed that the commanding officer was behind some false charges that had been laid against him which appear to involve an abduction in the company of others. This is a civil proceeding as opposed to a military proceeding. The applicant believed that the commanding officer had instigated this prosecution in order to prevent the applicant from giving evidence against him in respect of any war crimes hearing that might occur arising out of the incident which I have described. The applicant believed that if he returned to Yugoslavia he would be prosecuted under these false charges and possibly would be the subject of some extrajudicial violence.
The Tribunal had before it the applicant's original statement which is found commencing at CB32. The delegate's decision and reports, including a report of a discussion between the delegate and the applicant, are found at CB94. A second statutory declaration commences at CB146. The applicant was also interviewed by the Tribunal. The Tribunal made certain findings with regard to the factual matters alleged by the applicant. At [CB 199] it states:
“The Tribunal accepts that the applicant, one of a company of 12 under a commanding officer, went to a place near Novi Sad on 3 April 1999; that the commanding officer ordered the applicant to do something which the applicant refused and that the commanding officer then assaulted him; and that the applicant was taken to a military hospital some 70 kilometres away (the distance from Novi Sad to Belgrade). The Tribunal accepts that the applicant left hospital unofficially and deserted the army eventually making his way to Australia where he arrived in October 2000.”
At [CB 200] the Tribunal also makes a finding which is of some importance in these proceedings. It is in the following form:
“It is understandable that the applicant should have fled his homeland if he was assaulted by his commanding officer and deserted the army. It is understandable that he wished to stay away from his home country while that same government was in power...however, the applicant's fears of returning to Serbia as an army deserter ceased to be well-founded when the amnesty law came into effect in February 2001.
However, the applicant is not claiming that desertion is the basis of his fear. In his own words, he claims that "A false accusation has been made against me in relation to an abduction (which also involves others as the charge refers to collaboration). These charges against me are false. They are a way of getting rid of me so that I will not be able to give evidence at the War Crimes Committee by the [commanding officer].”
This claim involves a number of assumptions. The first major assumption is that there is a connection between the allegations (as referred to in the warrant) and the commanding officer...”
Finally, at [CB 202] the Tribunal reinforces it's non-finding concerning the incident by stating:
“This does not, of course, rule out the possibility that at some stage in the future the commanding officer might be indicted (although whether a war crime was committed on the particular occasion in question has not been established).”
The applicant by a further amended application outlines two areas in which he says the Tribunal fell into jurisdictional error. The first is said to be that:
“The Tribunal failed to consider the actions of the applicant within the context of the full terms of the Serbian Criminal Code and thus failed to properly consider the possible repercussions of returning the applicant to his home country.”
This ground was explained by Mr Joseph as an extension of the first. What the applicant means by this is that when the Tribunal refers to the fact that the applicant should no longer and does no longer have any fear of returning to Serbia because he was a deserter from the army the Tribunal neglected to consider whether he had any fear of returning to Serbia as a person who had refused to obey the orders of his commanding officer. This crime was apparently explicitly excluded from the first amnesty of September 1998 given by the Serbian Government. The reference to it is found at [CB 106] in the country information produced by the delegate. But the relevant amnesty law is not the amnesty of September 1998. It is the amnesty of 2001 discussed in a circular by Amnesty International and found at [CB 243]. That document does not indicate the exemptions which are included in the 1998 amnesty. The respondent argues that the Tribunal did not fail to consider the matters raised, namely refusal to obey orders, because that matter was not specifically brought to its attention by the applicant and there was no evidence on the face of the papers before the Tribunal that the exceptions continued to affect the amnesty.
The applicant argues that the failure of the Tribunal was the type of failure considered by the High Court in Dranichnikov v Minister for Immigration [2003] 197 ALR 389 but the respondent argues that the matter is more accurately dealt with by the Full Bench of the Federal Court in NABE v Minister for Immigration (No. 2) [2004] FCAFC 263 at [58-61]. At [58] their Honours say:
“The use of the adverb "squarely" does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.”
In this case I am unable to see how the matter could be said to be apparent on the face of the material before the Tribunal. The applicant did say that he refused to obey the orders of his commanding officer but he never indicated that the possibility of being prosecuted for this was the cause of his fear. At all times his fear has been expressed as punishment for desertion and the activities of the commanding officer. At [CB 38] he says:
“I will be punished for deserting the army. I am sure that if I return sooner or later I will be caught and killed. I believe I will be wanted as a witness to the killing of those innocent people and that my commander will make sure I disappear so that I do not give evidence.”
At [CB 149] under the heading "The Reason Why I Fear Returning to Serbia" he says:
“However, my claims are not merely that I am afraid to return to Serbia because I deserted from the military service during the war. My claims go further and are as follows. A false accusation has been made against me in relation to an abduction...these charges against me are false and are a way of getting rid of me so that I will not be able to give evidence of war crimes committed by [my commanding officer].”
There is no reference in the Tribunal's report of its discussions with the applicant that he was concerned that he would be charged for failing to obey what are clearly illegal orders of his commanding officer. In these circumstances I believe that NABE (supra) is authority for my finding that the Tribunal did not fall into any jurisdictional error by not considering this possibility.
I would also say that I am sympathetic to the arguments put forward by Ms Francois on behalf of the Minister that the requirement for the Tribunal to give some consideration to this possibility has a bizarre tinge to it. The applicant's fear is expressed as one of action from this commanding officer because of the commission of certain war crimes. The action of the commanding officer is intended to prevent the applicant from being a witness against him. How could it be that the applicant will be prosecuted in those circumstances for the very actions in respect of which he is to give evidence, namely his refusal to act in the manner required by his commanding officer. The Tribunal has not found as a fact that the war crime was committed. It has been cautious. It could be said the Tribunal is not satisfied that such a crime was committed. If that is the case and the applicant's refusal to obey an order from his commanding officer was a refusal to obey some other lawful order then the applicant's fear is the fear of a law of general application and is not connected to any Convention reason.
I am satisfied that the Tribunal's decision in this case is free of jurisdictional error of the type referred to by the applicant in his further amended application and in his counsel's helpful and thorough written submissions. I must therefore dismiss this application and order that the applicant pay the respondent's costs including the costs of $1,800 previously ordered. I assess the costs of the substantive hearing to which the $1,800 is to be added at $4,000.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Raphael FM
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