SZEPN v Minister for Immigration
[2005] FMCA 1664
•22 November 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEPN v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1664 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – application dismissed. |
Migration Act 1958 (Cth), ss.91X, 474, 483A
Judiciary Act 1903 (Cth), s.39B
SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1
Craig v South Australia (1995) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26
| Applicant: | SZEPN |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File No: | SYG3140 of 2004 |
| Delivered on: | 22 November 2005 |
| Delivered at: | Sydney |
| Hearing date: | 2 November 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
| Solicitors for the Applicant: | Mr M Newman of Newman Solicitors |
| Counsel for the Respondents: | Mr G Kennett |
| Solicitors for the Respondents: | Phillips Fox |
ORDERS
The Refugee Review Tribunal be joined as second respondent.
The application is dismissed.
The applicant is to pay the respondents’ costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3140 of 2004
| SZEPN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth), invoking s.483A of the Migration Act 1958 (Cth) (“the Act”), filed in the Sydney Registry of the Federal Magistrates Court of Australia on 21 October 2004 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on
30 August 2004 and handed down on 21 September 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 6 February 2004 to refuse to grant the applicant a protection (Class XA) visa. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.
Consistent with the High Court decision in SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs I join the Tribunal as a party in these proceedings. Any reference to the respondent in these Reasons for Judgment is to the Minister for Immigration & Multicultural & Indigenous Affairs; the first respondent.
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Act and has been given the pseudonym “SZEPN”.
Background
The applicant, who claims to be a citizen of Serbia and Montenegro, arrived in Australia on 8 December 2003. On 20 January 2004 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act (Court Book pp.1-32) (“CB”). On
6 February 2004 the delegate refused to grant a protection visa (CB pp.35-46) and on 4 March 2004 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.47-50).
In his original protection visa application, the applicant described himself as a single, Muslim Albanian born in Miratovc-Preshevo, Serbia in June 1976. He stated his citizenship as Yugoslavian and his occupation as farmer. The applicant claimed he arrived in Australia in December 2003 using an Italian passport issued to him in April 2002. He stated he had previously held a Greek passport which he has since lost and detailed his overseas travels as visiting Macedonia on 20 April 1999, Albania on 21 April 1999, Vienna in June 1999 and Barcelona from June 1999 to December 2003. The applicant stated he obtained an Australian visa in December 2003 (CB p.72).
Applicant’s claims
The applicant stated that all his life he was under Serbian control and that Serbians hated him because he is a Muslim. He claimed that due to the war between Kosovo and Serbia in 1998 he was forced to flee to other countries. The applicant stated that all the people under Serbian control in Kosovo were forced to flee to Llojan in Macedonia. He stated that in March and April 1998 he helped refugees from Kosovo save their lives by fleeing to Llojan in Macedonia and together with two friends he helped many people.
The applicant claimed that around April 1999 soldiers in army trucks came and knocked on his door to arrest him but he was not home at the time. He stated he came to know from some soldiers that his two friends were arrested and when he came home that night there was a car following him and he saw police and soldiers in the car and he ran for his life. The applicant claimed that soldiers and police then shot him in the left leg and his family thought he was dead. He subsequently called his brother and family to inform them that he was alive but had been shot. The applicant stated that despite the bullet wound he kept on walking and called his family to ask them to help him escape. He stated his young brother brought him his passport and some money and he escaped “through a short route” and travelled 3-4 kilometres to Llojan in Macedonia after crossing the border. After he reached the city capital of Shkup in Macedonia he then travelled to Pogradec in Albania where he had the bullet in his leg removed. After two days he moved to Tirana where he stayed for two months until he obtained a Greek passport and travelled to Vienna and ultimately Barcelona, Spain. In Barcelona he obtained an Italian passport and arranged his airline ticket to transit through Amsterdam and Singapore en route to Australia (CB p.73).
The Tribunal’s findings and reasons
The Tribunal appears to have accepted the applicant’s claim that he was a Muslim and an ethnic Albanian. It expressly accepted his claim that he had helped refugees to escape Montenegro during a period of armed conflict between Kosovars and the authorities under the former Milosevic regime (CB p.78). The Tribunal interpreted the applicant’s claim that he feared to return to his home town as he indicated he would be “in trouble” for evading conscription and he was being sought by police in army and police uniforms (CB p.74).
The Tribunal interpreted the applicant’s claim that he is still being sought by the authorities and concluded that the claim was not credible in the light of independent evidence which it accepted. The Tribunal also accepted independent evidence to the effect that people like the applicant are no longer oppressed by Serbians. The Tribunal therefore did not accept that the applicant had a well founded fear of persecution in Serbia and Montenegro and it followed that he was not a person to whom Australia had a protection obligation under the Refugee Convention.
Application for review of the Tribunal’s decision
On 21 October 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth) setting out the following ground:
“1.The Refugee Review Tribunal made a jurisdictional error when it failed to understand the risk of persecution to the applicant in Serbia and Montenegro. The applicant was denied procedural fairness the whole case was misunderstood by the Tribunal. The applicant claims that the decision involved the making of a jurisdictional error when it failed to identify the issues and the type of harm, the applicant will face if he is compelled to go back.
Particulars
The Tribunal has accepted that the applicant was involved in assisting refugees to escape during the time of the former Milosovic regime and he was wounded. However, the Tribunal does not believe that the applicant is a credible witness. Applicant claims that the country information is prepared by the Department of Foreign Affairs of the Australian government. The Country Information on which the Tribunal relied for the decision is not current. The Tribunal selected only negative part of the Information to reject the applicant’s application. (Errors included)
On 8 December 2004 the applicant filed an amended application which claimed the following Tribunal errors:
1.The Tribunal did not fault the credibility of the applicant and turned its mind exclusively to the question of the legislation now in place in the country of origin but failed to consider whether community attitudes had changed in the short time since the troubles sufficiently to ensure the applicant a life free of the risk of persecution see the decision of Madgwick J in NACZ v MIMIA [2003] FCA 457 particularly para 38 –‘The ability of Fijian leaders, albeit subjectively well-motivated (though, it might appear, within limits) to ensure that effective protection would follow down to town, suburb or village level in the region whence the applicant came, needed assessment’.
The law
The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia (“Plaintiff S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (“Applicant S134/2002”), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: Plaintiff S157/2002 at [76] and Applicant S134/2002 at [15].
An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal’s power: Craig v South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs.
Reasons
Mr Newman, Solicitor appearing for the applicant, indicated that the application consisted of two separate claims. However, the first claim, that the applicant had evaded conscription and is sought by the authorities, was not pressed in light of the information contained in the independent country information indicating that the authorities had granted an amnesty to all those who had avoided conscription during the period of unrest. Mr Newman indicated that, in light of this information, this element of the application was no longer pursued.
The remaining issue was that the applicant was a Muslim and that the Serbs as a society have an ingrained hatred of them and this hatred would be compounded by the applicant’s assistance to Kosovo (Muslim) refugees during the recent war when he had helped them to reach a safe haven in Macedonia. The applicant was providing a “Good Samaritan” service and had suffered a bullet wound to the leg during these activities. It was the adverse finding of the Tribunal which the applicant challenged. The applicant claimed that the Tribunal’s “Findings and Reasons” were brief and dismissive with the effect that no matter what the applicant said, the Tribunal denied his claim. The applicant claimed ingrained hatred but the Tribunal accepted independent advice to the contrary and rejected the claim.
Mr Newman, for the applicant, submitted that the difficulty with the Tribunal’s approach was that the acceptance of the independent evidence was not a reasoned acceptance. He argued that in the decision, under the heading “Claims and Evidence”, the Tribunal made the following statement:
“The Tribunal also has had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources.” (CB p.72)
The applicant claimed that this statement obliged the Tribunal to have consideration of materials supplied within the independent information that clearly supported the applicant’s claims. This was considered in the context of the applicant expressing fear of harm should he return to his home town because he had helped Kosovar refugees to flee and had escorted them to Macedonia. The Tribunal referred to the existence of independent evidence as set out in the primary decision maker’s decision and the independent evidence made available to it from other sources, which indicated that hostilities were at an end and Serbian forces had withdrawn from Preshevo. After their withdrawal, free and fair elections had been held to form a government representative of the local population. The Tribunal put to the applicant in light of this set of circumstances why he still feared a return to that environment. The applicant’s reply was:
“… that there are those who might ‘never forget’ what he has done and there are people who call at his house looking for him”. (CB p.74)
When the Tribunal enquired as to who visited the applicant’s house looking for him, he responded that it was the police. The applicant indicated the police were enquiring of his mother as to his whereabouts and informed her that he had been “charged”.
It was the applicant’s contention that there was material contained within the independent country reports which clearly supported his claim for fear. In the US State Department Report on the Federal Republic of Yugoslavia – Country Report on Human Rights Practice – 2001, released by the Bureau of Democracy, Human Rights and Labour, March 4, 2002, under the heading, “National/ Racial/Ethnic Minority, there is a commentary regarding the ethnic Albanians in the cities of Preshevo, Bujanovac and Medvedja in south eastern Serbia where there are complaints of discrimination by the Serbian authorities. That section of the report contained the following statement:
“Relations between Serb and ethnic-Albanian communities, particularly in southern Serbia, are marked by mutual suspicion and mistrust; however, communication and cooperation were improving by year’s end. A new multiethnic police force, made up of ethnic Albanians and Serbs began to be trained during the year, and the first of three groups of officers, composed of 63 Albanians and 37 Serbs, entered into service in southern Serbia in the fall. This multiethnic police force has wide approval in the Albanian community. Ethnic Albanians continued to express concerns about 163 policemen in the area who they claim served in Kosovo during the war; however, there were no reports of abuses by these officers.” (Supplementary Court Book p.39) (“SCB”)
Mr Newman contended that the content of that report was collaborative evidence in support of the applicant’s stated fear. The submission was that the applicant was entitled to have these claims considered as being justified and legitimate on the face of the body of evidence contained in the independent country information.
In the Tribunal’s “Findings and Reasons”, it accepted the applicant was involved in assisting refugees to escape during the former Milosevic regime and that he was wounded while participating in these activities. However, the Tribunal did not accept the applicant’s claim that he is still sought by the authorities with the applicant indicating that his mother had advised him that she had been visited by members of the police force enquiring as to the applicant’s whereabouts and their desire to question him. The Tribunal indicated that it accepted the independent evidence cited that the situation in Preshevo had changed and that people like the applicant were no longer oppressed by the Serbians. Mr Newman contended that this finding was contrary to information contained in the independent country advice referred to above in paragraph 18. In particular, Mr Newman’s argument emphasised the presence of the 163 policemen who had served in Kosovo during the war as part of the Serbian forces. In other words, this group of police were members of the enemy forces in the eyes of the ethnic Albanians, being a class of people to whom the applicant belonged. Mr Newman further argued that the Tribunal did not have regard to all the evidence available in the reports by accepting that the situation has changed and that racist Serbian police serving in the new multi ethnic police force have ceased to exhibit their racist behaviour to the ethnic Albanians. By forming this view, it was submitted, the Tribunal did not accept the applicant’s claim regarding his continuing fear of the local authorities and formed the view that the applicant was fabricating this claim, especially in respect of the claim that his mother had advised him of the visit by the police attempting to locate him.
Mr Kennett of Counsel, for the respondent, accepted that the applicant had identified two reasons being the cause of his fear to return to Preshevo; the issues of conscription and helping refugees escape to Macedonia. Mr Kennett contended that these two issues did in fact blend into a single claim that the applicant continued to fear the authorities; in particular, the group that may “never forget”. This group was most easily identified as being the Serbian members of the new multi ethnic police force.
In its “Findings and Reasons”, the Tribunal focused on the applicant’s claim of fear of the authorities and concluded this claim was a fabrication because it was contradicted by certain evidence available to the Tribunal. The respondent contended that the applicant was seeking to overturn a finding of fact which is contradictory to the Tribunal’s role of considering the evidence before it and giving that material relevant weight in its decision. That element of the decision may be an error of fact but that does not lead to a jurisdictional error. The applicant’s contention was that the Tribunal overlooked the facts contained in the country report which raised the issue of the Serbian members of the new multi ethnic police force who had previously served with the Milosevic forces during the Kosovo conflict. Counsel for the respondent drew to the Court’s attention the lengthy extract contained within the Tribunal’s decision from the US State Department 2003 Country Report on Human Rights, Practices in Serbia and Montenegro (released on 25 February 2004) (CB pp.76-78). This is a later version of the report which Mr Newman relied upon as the source of the material that the Tribunal significantly overlooked. This later report updated the passage under the heading, “National/Racial/Ethnic Minorities”. The new report contained the passage:
“A strong police presence remains in southern Serbia due, in part, to the credible threat of violent acts by radical elements of the ethnic Albanian community. There were few reports of police harassment against the ethnic Albanian population, and there were no reports of physical abuse or brutality …” (CB p.78)
It was this information that the Tribunal relied upon in its decision; a report that was two years subsequent to the material relied upon by Counsel for the applicant in the presentation of his argument.
Counsel for the respondent, in his written submissions, submitted a convenient approach to the analysis of the ground pleaded by the applicant. The ground made three assertions that the Tribunal:
a)“did not fault the credibility of the applicant”;
b)“turned its mind exclusively to the question of the legislation now in place in the country of origin”, and
c)“failed to consider whether community attitudes had changed … sufficiently to ensure the applicant a life free of risk of persecution”.
In respect of assertion (a), the Tribunal accepted the applicant’s claim about his past, but found his claim that the authorities were still seeking him “not credible”. His claim that he had heard from his mother about visits from the authorities was described as a “fabrication advanced to assist his claims”. This was critical because, while the applicant had spoken in terms of being “hated by Serbians”, the only fear of actual harm that emerged from his evidence was the fear of action against him by the authorities. The existence of such fear was rejected by the Tribunal as a matter of fact and on a basis which involved adverse conclusions about the applicant’s credibility.
In respect of assertion (b), the Tribunal referred in its findings and reasons to (CB p.78):
i)an amnesty for people who fled the country to avoid conscription;
ii)“the situation in Preshevo” having changed; and
iii)the local authorities now being “representative of the local population who no longer represent the racist Serbian policies of the former Milosevic regime”.
There was no reference to, let alone exclusive reliance on, legislation. Early in its reasons, the Tribunal referred to country information concerning the enactment and implementation of the amnesty and set out an extract from the US State Department Report on conditions in southern Serbia generally.
In respect of assertion (c), the Tribunal was not under any duty to consider “community attitudes” per se. Its task was to consider whether there was a real chance the applicant would suffer persecution in Yugoslavia for a Convention reason (his religion as he asserted or possibly his ethnicity). In deciding that question of fact, the Tribunal was entitled to give such weight as it thought appropriate to the various items of material before it. The applicant had expressed a fear of harm from the authorities and the Tribunal dealt with that claim on a factual basis. It also expressed a more general conclusion that people in the applicant’s position were “no longer oppressed by Serbians” (CB p.78). These conclusions were open to the Tribunal on the information it had before it. I accept Mr Kennett’s submission that each of the assertions is incorrect.
Conclusion
I do not believe that the grounds pleaded that the Tribunal committed jurisdictional error can be sustained. The applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 22 November 2005
1
1
0