SZLQB v Minister for Immigration - [2008] FMCA 1590

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLQB v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1590

MIGRATION – Application to review decision of Refugee Review Tribunal – applicant child of parents who had each made prior unsuccessful protection visa applications – whether Tribunal proceeded on basis it would accept as correct earlier Tribunal decisions – whether independent claim by applicant – whether Tribunal considered all applicant’s claims.

Migration Act 1958 (Cth), ss.36, 48B, 417, 425

Ibrahim v Minister for Immigration and Multicultural Affairs (2000) 60 ALD 465
Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
NAXG v Minister for Immigration [2004] FMCA 912
NAXG v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 400
V856/00A v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 408
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630
WBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419

Applicant:

SZLQB

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3513 of 2007

Judgment of:

Barnes FM

Hearing date:

4 July 2008

Date for Last Submission:

8 August 2008

Delivered at:

Sydney

Delivered on:

27 November 2008

REPRESENTATION

Applicant:

Applicant’s litigation guardian in person

Counsel for the Respondent:

Ms L Clegg

Solicitors for the Respondent:

Clayton Utz

ORDERS

That the application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3513 of 2007

SZLQB

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for review of a decision of the Refugee Review Tribunal handed down on 25 October 2007 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa. The applicant, a citizen of Macedonia, was born in Australia on 21 June 2005 to Macedonian parents who have each previously unsuccessfully applied for protection visas.
The applicant’s mother applied for a protection visa in February 1998. Her application was refused. That decision was affirmed by the Tribunal in April 1999. The applicant’s mother then sought Ministerial intervention under s.417 of the Migration Act 1958 (Cth). The Minister declined to intervene.
On 28 September 2001 the applicant’s father lodged an application for a protection visa in which the applicant’s mother and sister were included. That application was refused on 23 April 2002. The applicants sought review by the Tribunal which on 15 September 2003 affirmed the decision. An application for judicial review was dismissed by this Court and an appeal to the Federal Court was dismissed on 13 April 2005. The applicant’s father made unsuccessful applications to the Minister under ss.417 and 48B in 2005. The applicant’s parents again unsuccessfully sought Ministerial intervention in October 2006 and January 2007. Copies of those applications and supporting material in relation to the family’s circumstances were lodged with the Department in connection with the applicant’s protection visa application and referred to in the application in response to questions about the basis for the applicant’s claim.
The application was refused by a delegate of the first respondent. The delegate summarised the applicant’s claim as a claim through his parents to fear for the lives of his family members in Macedonia. It was noted that the applicant’s claims were essentially the same claims as those that were advanced by the applicant’s parents and on behalf of his elder sister in pursuit of their own protection claims since 2001 and that those claims have been considered and the applicant’s parents and sister found not to be refugees. Nonetheless the delegate considered that the applicant had lodged a valid application for a protection visa in his own right and addressed his claims. The delegate considered the applicant’s (and his family’s) claims individually and cumulatively, but based on country information and the lack of credibility of some of the claims, did not accept that the applicant faced a real chance of Convention-related persecution should he travel to Macedonia.
The applicant sought review by application lodged with the Refugee Review Tribunal. The applicant’s parents gave evidence at a Tribunal hearing. The only evidence before the Court of what occurred in the hearing is the Tribunal reasons for decision. In its reasons for decision the Tribunal recorded that it had before it the Department’s file and the Tribunal files for the applicant’s mother and father.
The Tribunal summarised the letter attached to the protection visa application in which the applicant’s father sought that the Minister exercise the discretion under s.417 of the Act, claiming that he had not been able to address all issues when the Tribunal dealt with his application as he was not in possession of all the relevant documents. The letter claimed that the applicant’s father had not fully comprehended the significance of the further material referred to, which was said to support the family’s claim that they would be in danger if they returned to Macedonia by reason of the father’s Macedonian ethnicity and because of his membership of a particular social group as a lieutenant in the army reserve (being a particular social group of Macedonian army officers). It was also claimed that the applicant’s mother’s ex-husband was an Albanian terrorist who had made specific threats against them. The applicant’s father claimed that he understood that he had been placed on an a “wanted list” by Albanian terrorists because of this connection and because of his Macedonian ethnicity and that the authorities were unable to offer protection as they themselves were targeted by Albanian terrorists and had previously failed to assist his de-facto wife’s family.
The s.417 application referred to country information stating that while the Macedonian government generally respected human rights, there were reports of police abuse, corruption and political pressure on the judiciary, societal violence and discrimination against women and children and trafficking in women and girls for sexual exploitation. The applicant’s father claimed that it was these areas that caused him particular concern for the safety of himself and his family. He made claims about the absence of state protection, increase in criminal activity, eruption of ethnic minority grievances and hostilities in Macedonia which were said to indicate that the family’s fear of harm from the applicant’s mother’s ex-husband was credible and plausible.
A 1994 Macedonian court document indicating that custody of a child had been given to the applicant’s mother was attached to the s.417 application. This was said to support the claim that that child had been kidnapped by the mother’s ex-husband. Further court documents were provided indicating that the applicant’s mother’s attempts to regain custody of the child had been unsuccessful.
The s.417 application also claimed that telephone threats had been received from the applicant’s mother’s ex-husband in 1997 and 1998, which they believed would have continued had he been able to find their current location in Australia. A copy of the ex-husband’s criminal record was attached, which was said to indicate a previous propensity for violence, together with a statement from a witness who was said to have been present when one of the threatening telephone calls was received. The applicant’s father expressed concern for the safety of his family given that the applicant’s mother’s ex-husband was said to have previously assaulted two members of her family in 2002 as evidenced by a copy of a hospital discharge form in relation to treatment of a member of the applicant’s mother’s family for broken bones and other injuries. It was also said that there was a lack of state protection for women in Macedonia.
The applicant’s father also claimed that he had been called up for military service while in Australia, but had been unable to attend because he was in detention, that this had meant that he had defaulted on his obligation and that he had been sentenced to a period of imprisonment on return. He claimed that his liability to repay a debt to the government of over $60,000 also contributed to his concern for the wellbeing of his family.
The applicant’s father submitted in the s.417 application that the family’s identity as ethnic Macedonians meant they faced a significant threat to their human rights and security in Macedonia. He claimed that a large number of ethnic Macedonians had been internally displaced due to the conflict with ethnic Albanians and that the government was trying to force them to return to their homes. He expressed concern about his children’s wellbeing should they return to Macedonia in light of inter-ethnic violence and discrimination in Macedonian schools and the language in which education is conducted there, given that his daughter had been educated in English in Australia. He also expressed concern about the consequences if he were to be imprisoned in Macedonia and unable to support the family, the low standard of living and high unemployment rate and claimed that his children would face discrimination and poor educational facilities in an unfamiliar language. Information about the family’s integration in Australia was also provided in support of the s.417 application.
The Tribunal recorded that at the Tribunal hearing the applicant’s parents indicated that there were no further documents to be submitted. The applicant’s parents asked the Tribunal to consider the “new” evidence provided about Macedonian police seeking the whereabouts of the applicant’s mother’s ex-husband in relation to 1993 offences concerning the use of firearms, for which the ex-husband had not yet been imprisoned.
The Tribunal recorded that in the hearing the applicant’s parents stated that they had not heard from the mother’s ex-husband for a long time, but thought he would be interested in harming them because he was said to have been “criss-crossing the country and whoever he meets he makes threats against the applicant’s mother, because she left him”. The applicant’s mother could not recall the date when she left her ex-husband. The marriage was dissolved in November 1993 and the custody order was made in June 1994 in relation to the child of that marriage born in 1991 who was said to have been taken by her ex-husband when he was about one year old. She claimed she believed her ex-husband would target and harm her and that he had not harmed her prior to leaving Macedonia in 1997 because he could not find her as she was living in Serbia and Bulgaria with relatives. She claimed that her ex-husband had made threats against other members of her family and threatened to kill her present husband and that every time he heard she was pregnant with another child he threatened her parents. She claimed he physically attacked her mother and grandmother in 2002.
The applicant’s father told the Tribunal that the army would seek to punish him because he had not returned to continue his military service, that it would be difficult to explain to the authorities from whom he was fleeing and that he may be court-martialled and sentenced. The Tribunal recorded that it mentioned that the applicant’s father had discussed this matter with the last Tribunal member in relation to his own application and asked him if he wished to add anything further about it. He stated he had been head of the artillery unit. He initially came to Australia for six months and he did not wish to return because he had met his partner and they wanted to be together. He claimed that in 2001 he began to have fears about his partner’s ex-husband. He had heard that the police were looking for that person and that they believed he was in hiding.
The Tribunal recorded that it confirmed with the applicant’s parents that “their claims in relation to the applicant were the same as the claims put forward by both parents on two separate occasions”. It recorded that they stated they feared harm from the applicant’s mother’s ex-husband as he was Albanian, Muslim and a well-known drug dealer and terrorist who had taken the applicant’s mother’s first son out of the country dressed as a girl and that they feared they would not receive police protection and the ex-husband would seek to harm them.
When asked if there were any other matters they wished to discuss, the parents stated they were afraid the ex-husband would do something to the applicant’s mother and her children. They referred to the fresh evidence that he was wanted by the police.
The Tribunal referred to the prior consideration of the applicant’s parents’ claims by differently constituted Tribunals and stated that the applicant was an infant who was relying on his parents’ refugee claims. It continued:
The applicant advanced no claims to refugee status on the basis of his own circumstances or experiences. His claims rest entirely upon his parents’ claims, both of whom have been determined by this Tribunal, differently constituted, not to have well-founded fears of persecution for any Convention reason.
The Tribunal has considered all the material advanced by the applicant’s parents in support of their previous claims to refugee status, all of which was also advanced in support of their son’s (the applicant) application. The applicant’s parents have not provided any information relating to their own circumstances in addition to what was previously provided, apart from one document from a court in Macedonia which states that the applicant’s mother’s ex-husband has been sentenced to three months imprisonment and has not served that sentence. This additional evidence does not lead the Tribunal to a different view about the applicant’s parents’ claims.
The Tribunal, presently constituted, has read the decisions of the Tribunal differently constituted, in relation to the claims by the parties concerned. The applicant’s parents have not advanced any claims or evidence which would persuade the presently constituted Tribunal to take a different view of their entitlement to refugee status.
In relation to the claims advanced by the applicant’s parents that standards of living and education are poor in Macedonia, the Tribunal finds that these are not Convention-related claims.
Accordingly, the Tribunal finds that the applicant does not have a well-founded fear of persecution for a Convention reason.

This application

The applicant sought review by application filed in this Court on 13 November 2007. His father was appointed litigation guardian at a directions hearing. An amended application was filed on 24 June 2008 containing the following ground:
The Tribunal constructively failed to exercise its jurisdiction.
Particulars
The Tribunal proceeded on the basis that it could accept as correct decisions of the Tribunal as differently constituted in relation to the parents of the applicant and so did not “review” the decision of the delegate in respect of whose decision the applicant bought the application to the Tribunal.
The applicant did not file written submissions. His father claimed in oral submissions that the Tribunal had failed to review the delegate’s decision properly and that during the Tribunal hearing the applicant’s case was never mentioned. He contended that what had been discussed were the parents’ applications. He claimed that the applicant had been denied the right to have properly assessed his claim to refugee status.
The applicant’s father submitted that the information lodged with the protection visa application was in relation to the son’s claim and that he and the applicant’s mother had not been seeking to have their own cases reopened.
Associated issues emerged during the hearing as to whether the applicant’s claims to the Tribunal were merely a re-agitation of his parents claims (and if so what were the consequences and if not whether the Tribunal had considered all of the applicant’s claims) and whether the Tribunal had erred in concluding that the applicant’s parents had not advanced any information relating to their own circumstances in addition to what was previously provided (apart from documents in relation to the ex-husband’s 1993 firearms offence) given the extent of the information provided in connection with the s.417 application attached to the applicant’s protection visa application.
The parties were given the opportunity to make post-hearing submissions. The first respondent filed detailed supplementary submissions. The applicant did not file any submissions in reply and was notified by letter that no submissions had been received and that the decision would be made on the material before the Court.
In relation to the oral submissions for the applicant about the Tribunal hearing, the only evidence before the Court of what occurred in the Tribunal hearing is the Tribunal reasons for decision. The applicant had the opportunity to file a transcript of the Tribunal hearing but did not do so. Given the confirmation by the applicant’s parents of the nature of their son’s claim as “the same” as the claim put forward by the parents on two separate occasions, the Tribunal’s account of the hearing does not support his father’s claim that during the hearing the applicant’s case was never mentioned. The Tribunal also recorded that after discussing the applicant’s parent’s claims and confirming that their claims in relation to the applicant child were the same as they had previously put forward, it asked if there were any further matters they wished to discuss, thus giving the applicant’s parents an opportunity to address any aspect of their infant son’s claim that had not been discussed. The parents reiterated their concerns that the applicant’s mother’s ex-husband would do something to her and to her children and referred to the new court document indicating that the ex-husband was wanted by the police. They stated that they were under a lot of stress and suffering from memory problems and that Macedonia was not a democracy.
In these circumstances the evidence of what occurred in the hearing is not such as to establish that the applicant’s case was never mentioned or that the applicant was denied a hearing as required by s.425 of the Migration Act 1958 (Cth).
Moreover the Tribunal did not simply proceed on the basis that it could accept as correct the differently constituted Tribunal decisions in relation to the applicant’s parents as contented in the amended application. It has not been established that it did not “review” the delegate’s decision in relation to the applicant child.
The first respondent submitted that the fact that the applicant’s claim was founded entirely on his parents’ previous claims was confirmed by the parents at the Tribunal hearing. In effect, their claim was that the claims were the same, but that they had now provided further documentation in relation to those claims. This was said to be a reference to the material provided in support of the s.417 application annexed to the protection visa application.
Counsel for the first respondent suggested that the fact that the applicant’s claim was founded entirely on his parents’ previous claims to protection visas was also discernable from the s.417 letter, which made no reference to his fears and referred only to the procedural history of the parents’ applications for visas and Ministerial requests.

Given that the s.417 application was made by the applicant’s father asking the Minister to substitute a decision more favourable to him (and hence to those family members who had been included in his protection visa application), it is hardly surprising that the s.417 request concentrated on the applicant’s father’s claims, although it did also mention the applicant’s mother’s claims.
The s.417 letter stated that the request also included the father’s two children (including the applicant in this case). Apart from general claims that “they” would be in danger if returned to Macedonia and concerns expressed for the safety of the “family”, (which can be seen as making the same claims for the applicant as had previously been made for the other members of the family), there is a direct reference to the applicant’s specific circumstances in the s.417 submission, in an expression of concern for the welfare and well-being of the “children” concerning their future education and medical care in Macedonia. This concern clearly included the applicant (who was referred to specifically at the commencement of the letter). However the s.417 letter did not suggest that these matters formed the basis for a complaint about a fear of Refugees Convention-related persecution. Rather they were raised in the context of an application seeking to persuade the Minister that it was in the best interests of the children that they remain in Australia and as part a general submission in aid of the application for the exercise of Ministerial discretion.
Having regard to this material and in light of the parents’ confirmation at the hearing that the claims in relation to the applicant were the same as the claims put forward by his parents on two separate occasions, it was open to the Tribunal to observe that the applicant was an infant relying on his parents’ refugee claims and to note that he himself advanced no claims to refugee status based on his own circumstances or his own experience (perhaps hardly surprising in light of the fact that he was at that time two years old). The Tribunal did not err in observing that the applicant’s claims (in the sense of his claims to have a well-founded fear of persecution for a Convention reason), rested entirely upon his parents’ claims (who had each been found not to have well-founded fear of persecution for any Convention reason) given its finding that the claims about the standard of living and education in Macedonia (which might be seen as independent claims on behalf of the applicant) were not Convention-related claims. In this sense the application was a re-agitation of the parents’ claims, albeit partly from the perspective of what can be described as the applicant’s membership of what could be seen as particular social groups consisting of the family of each of his parents.
The Tribunal did not simply accept the previous Tribunal decisions. It considered the applicant’s claims in this case and no jurisdictional error is established in that consideration. Its approach to the earlier Tribunal decisions in relation to the applicant’s parents and sister is not such as to establish that it failed to “review” the decision of the delegate in relation to the applicant in accordance with its obligation under the Migration Act.
As the first respondent submitted, the question of whether an applicant’s claims were properly considered must be reviewed in the unique factual context and by reference to the essential nature of the particular claims in issue. In this case the starting point for consideration was that the applicant’s claim was in essence founded upon the same claims and upon his membership of the families of each parent and in that sense was in essence founded upon the same claims and upon his parents’ previous claims for protection visas. There was no suggestion in the material accompanying the protection visa application or at the Tribunal hearing that if the applicant’s parent or parents did not have a well-founded fear of persecution for a Convention reason (including based on their ethnicity or on circumstances such as violence in Macedonia), the applicant nonetheless had such a fear on that or on some other basis. In any event, the Tribunal also addressed the contention about poor standards of living and education in Macedonia, which in one sense could be seen as independent claims made by the applicant, notwithstanding that the applicant’s parents had confirmed that the applicant’s claim to a protection visa was founded upon their previous claims to protection visas.
I accept the Minister’s submission that not every matter raised in the s.417 submission annexed to the protection visa application necessarily provided a basis for claims made by the applicant or his parents to fear persecution for a Convention reason in Macedonia. The Tribunal considered those claims of the applicant to fear persecution for a Convention reason that arose squarely on the material before it (see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1).
In relation to the applicant’s parents’ previous claims on which the applicant’s claims were based, the Tribunal stated that it had considered all of the material submitted by the parents in support of their previous claims (which included material not before the previous Tribunals), all of which was also advanced in support of their son’s claims. It recorded that they had not provided any further information relating to their own circumstances in addition to what had previously been provided, apart from the documentation from the Macedonian court stating that the applicant’s mother’s ex-husband had been sentenced to three months imprisonment and had not served that sentence. In that context this was clearly a reference to information relevant to the basis for their Refugees Convention claims. The Tribunal found that this did not lead it to a different conclusion about the applicant’s parents’ claims. The Tribunal indicated that it had read the Tribunal’s previous decisions in relation to the applicant’s parents and found that none of the claims or evidence advanced persuaded it to take a different view of the parents’ entitlement to refugee status. In effect the Tribunal adopted the reasoning, conclusions and findings of previous Tribunal members in relation to each of the parent’s claims, as applicable to the applicant’s claims.
In post-hearing written submissions counsel for the first respondent provided the Court with copies of the previous Tribunal decisions in relation to the applicant’s parents. It is apparent that in 1999 T₁ accepted as genuine the applicant’s mother’s claims to fear her former husband, but found that her claims were not Convention related and that effective state protection was available. T₁also rejected the applicant’s mother’s general claims concerning ethnic violence between Macedonians and Albanians based on independent country information (another matter raised on behalf of the applicant) and a claim about name calling by neighbours on the basis that it did not amount to serious harm.
Given the findings of T₁it was open to the Tribunal in this instance to conclude that none of the additional claims or evidence in relation to the applicant’s mother’s claims (including the evidence in relation to hospitalisation of a relative) persuaded it to take a different view when considering the claims made by the applicant. No error is revealed in the presently-constituted Tribunal’s consideration of the claims of the applicant insofar as they are based on, or the same as, his mother’s claims, or on his membership of the family of his mother.
The decision of the differently constituted Tribunal on 15 September 2003 (T₂) concerned the applicant’s father as principal applicant. The applicant’s mother and sister also sought protection visas as members of his family unit. While the applicant’s father claimed that he feared harm from Albanian terrorists because he had been a Macedonian army officer, T₂ recorded that the oral claims at the hearing centred on the fear the family claimed they held in relation to the mother’s former husband who was said to be an Albanian terrorist. T₂ described this claim as the principal claim and observed that the applicant’s mother and father each claimed that this was not a personal dispute, but one connected to their ethnicity.
However T₂ found that the claims made by the applicant’s parents were exaggerated. It gave detailed reasons for its finding that the claims were not well founded. It considered in detail independent country information in relation to political and ethnic tensions in Macedonia and concern that the terrorist organisation to which the mother’s former husband was said to belong as well as information about the applicant’s mother’s former husband.
The applicant’s father had also made a claim concerned with his status as a former army officer. T₂ found that Macedonian law entitled the government to call him up for military service. A general claim about fear arising from ethnic tension and violence (another matter raised in this instance) was dismissed on the basis of independent country information and on the basis of a state protection finding. This decision was found not to be affected by jurisdictional error (see NAXG v Minister for Immigration [2004] FMCA 912 and NAXG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 400).
No error is established by the fact that in assessing the claims of the applicant based on his membership of his father’s family (or indeed claims that could be said to be independent claims based on the applicant’s ethnicity or the situation in Macedonia) the presently constituted Tribunal had regard to the findings and reasons of T₂ when it considered his father’s claims made on that basis.
The Tribunal is not bound by earlier decisions or constrained by what was decided in earlier cases. However it was open for it to find that it would not reach a different conclusion to that reached by the differently constituted Tribunals in relation to what were essentially the same claims, albeit that it must make the decision on the information before it at the time of that decision and in relation to the applicant in question (Ibrahim v Minister for Immigration and Multicultural Affairs (2000) 60 ALD 465).
The Tribunal observed that the applicant advanced no claims to refugee status on the basis of his own circumstances and experiences. With the exception of new evidence attached to the s.417 application in relation to the applicant’s mother’s husband (which the Tribunal considered), no further relevant material was provided to enhance or bolster the claims put forward.
Counsel for the first respondent addressed the issue of whether there was any claim or evidence in the s.417 submission that was not taken into account by the Tribunal in the sense considered in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 per McHugh, Gummow and Hayne JJ at [62] – [82]. The applicant’s parents confirmed that their son was relying on their previous claims. Notwithstanding this, the Tribunal had regard to claims and assertions from the s.417 submission which could have been taken to amount to claims to fear persecution under the Refugees Convention.
As set out above, the Tribunal referred to the fact that no further information relating to the applicant’s parents’ own circumstances had been provided, apart from the court documents in relation to his mother’s ex-husband. It also recorded that at the hearing the applicant’s mother expanded on these fears, while the applicant’s father reiterated that the army would seek to punish him because he had not returned to continue his military service and claimed that he could be court martialled and sentenced.
While other documentation was provided in connection with the s.417 application and hence annexed to the protection visa application, it is apparent that in referring to the absence of further information relating to the applicant’s parents’ circumstances the Tribunal did so in the context of having described the attachments to the protection visa application and his father’s statement that nothing further was to be submitted. It was open to it to find that no further information relevant to the Refugees Convention claims of the applicant based on the family’s circumstances in Macedonia (apart from the court documentation) had been provided and open to it on the material before it to find that this material did not lead it to a different view about the applicant’s parents’ claims.
The s.417 submission did contain country information. However it was unnecessary for the Tribunal to address this country information in the findings and reason part of its decision. It was extracted in the statement of reasons. However the Tribunal saw no reason to take a different view from that taken in the earlier decisions, in particular to the effect that the claims made by the applicant’s parents lacked a Convention nexus or were exaggerated and therefore not well founded. No country information would have made any difference to those conclusions. In relation to claims based on race and ethnicity, there was other country information before the Tribunal referred to by the delegate which was contrary to the claims for the applicant and which suggested that it was the Albanian minority (not the Macedonian majority) in Macedonia that was subject to acts of violence and that state protection would be available to the applicants. This information was consistent with independent country information referred to in the Tribunal decisions of 1999 and 2003 which was also before the Tribunal as presently constituted.
The choice and assessment of independent country information is a matter for the Tribunal (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10) as is the weight to be given to any piece of evidence (WBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419 and Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464). Even if the Tribunal relied on incorrect country information, such an error of fact would not of itself amount to an error of law or a jurisdictional error (see NAHI). It is well established that the Tribunal is not obliged to refer in its reasons to “every piece of evidence and every contention made by an applicant” as the Full Court of the Federal Court stated in WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [46]. In the particular circumstances of this case it was sufficient for the Tribunal to state that nothing before it caused it to come to a different conclusion from that reached by the Tribunals as previously constituted in relation to the parents’ claims.
In all the circumstances and having regard to the fact that this application was (as the applicant’s parents admitted) in effect premised on a reiteration of the applicant’s parents’ own claims to fear persecution, it was open to the Tribunal to refer to the decisions of the differently constituted Tribunals in relation to the applicant’s parents’ claims as it did and to conclude that no claims or evidence had been advanced which would persuade it to take a different view of his parents’ entitlement to refugee status. As they had been found not to have well-founded fears of persecution for any Convention reason, neither did the applicant, insofar as his fear was said to have the same basis.
It was not necessary for the Tribunal to engage in an exhaustive reconsideration of the applicant’s parent’s claims or their merits beyond the manner in which it did. The Tribunal considered the claims based on the standard of living and education in Macedonia, insofar as these could be seen to be independent claims of the applicant.
It has not been established that the Tribunal erred in the manner contended for in the amended application or that it failed to have regard to relevant considerations.
For the sake of completeness I have also considered the grounds in the original application to this Court which were addressed in the first respondent’s submissions. The first ground is that the Tribunal failed to recognise that the applicant child would be subject to persecution as an Orthodox Christian Macedonian child on the basis that he would be in danger of extreme violence from Albanian Muslim gangs holding up buses and persecution from Muslim teachers and pupils at school.
However, as submitted for the first respondent, these are new claims and there is no evidence that such claims were put to the Tribunal during the conduct of the review. This ground seeks to advance a new claim and on that basis seeks impermissible merits review.
The second ground in the original application is that the Tribunal failed to recognise that Macedonia is subject to corruption and violence. Again this ground seeks impermissible merits review. No jurisdictional error is established on either of these bases. I note that as discussed above, argument about ethnicity and violence had been addressed by the previous decision and the Tribunal, having considered all the material advanced by the parents and additional information, was not persuaded to take a different view
Counsel for the first respondent made detailed written submissions to the effect that the applicant’s claim to a protection visa was no more than a vehicle for the reconsideration of his parents’ claims. It was submitted that as he had made no independent “specific” claims of his own, Migration Regulation 866.211(a) mandated that he was not a refugee. On this basis it was submitted that (although the Tribunal did not reason in this way) the decision to affirm the decision of the delegate was inevitable, so that any error by the Tribunal would be an error within jurisdiction (see V856/00A v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 408 at [79] per Allsop J). In the alternative it was submitted that relief should be declined as futile. The applicant made no submissions on this issue. As no jurisdictional error has been established it is not necessary to determine this issue.
As no jurisdictional error has been established the application should be dismissed.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 27 November 2008