SZNDB v Minister for Immigration - [2009] FMCA 415

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNDB v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 415

MIGRATION – RRT decision – Serbian national claiming harassment for Croatian ethnicity – Tribunal found no well‑founded fear of persecution – no jurisdictional error identified – application dismissed.

Migration Act 1958 (Cth), ss.36, 91R, 91R(1)(b), 91R(2)

SZMGR v Minister for Immigration & Anor [2009] FMCA 174

Applicant:

SZNDB

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 30 of 2009

Judgment of:

Smith FM

Hearing date:

23 April 2009

Delivered at:

Sydney

Delivered on:

23 April 2009

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Mr H Bevan

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 30 of 2009

SZNDB

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant came to Australia in May 2008, and on 1 July 2008 he applied for a protection visa. His application indicated that he was a motor mechanic who was a Serbian national of the ‘Orthodox/Catholic’ religion. He referred to his ethnic group as being ‘half Croatian’. His claims to fear persecution if he returned to Serbia were presented in writing to the Department, at an interview with the delegate on 4 September 2008, and subsequently at a hearing of the Tribunal on 9 December 2008.
In his evidence, he referred to his family background, in which his mother was Serbian and his father was Croatian. From a very young age he had been brought up by his mother and Serbian stepfather in Belgrade. He had married and formed a second relationship, and had two children in Serbia.
Although his application claimed that he was in “grave danger of harm or being killed if I go back to Serbia” “because of my known political and anti govt views”, he told the delegate and Tribunal that he had no political profile in Serbia, and was not a member of any political party or organisation, but was known among his neighbourhood and workmates as somebody who was “extremely pro Muslim and Croat”. He said that his surname identified him as having a Croatian connection, and he was known to be a half Croat. He said that this led to periodic name calling and abuse by people in Serbia. He did not refer to any particular physical harms being suffered, but said that he was held overnight in a cell by the police once in 2000 or 2001, when he went to a police station to complain about being harassed. He had no other history of any difficulties with Serbian authorities, but he told the Tribunal that he feared that he might have difficulties in the future because of his opinions and family background.
The delegate refused the application on 26 September 2008. The delegate said:
While I accept that the applicant may feel insulted and upset by being called “Ustasha”, and especially in front of his children, and about other references to his Croatian heritage, I am nevertheless satisfied that this treatment does not amount to persecution. I am further satisfied there is no evidence to indicate the applicant would now face a real chance of persecution should he return to Serbia in the reasonably foreseeable future.
On appeal, the applicant presented no further evidence except at a hearing. A transcript of the hearing is not in evidence, but the Tribunal gives a description in its statement of reasons. The Tribunal further explored the matters which the applicant had told the delegate at interview.
On 10 December 2008 the Tribunal made a decision affirming the delegate’s decision. In its statement of reasons, the Tribunal accurately identified the claims made by the applicant in his evidence. The Tribunal said that it accepted that the applicant’s father is Croatian, and that he has relatives in Bosnia. It accepted that he did not support the government of Serbia and that he supported Muslims and Croatians.
It also accepted his claim that he had been teased by neighbours and colleagues because of his family background, his political views, and views which had been attributed to him by persons in the community because of his ethnic and family background. The Tribunal accepted that “approximately eight years ago he was detained and harassed by the police after he tried to lodge a complaint relating to harassment by his neighbours”.
The Tribunal referred to judicial authorities which have explored the point at which verbal harassment and social hostility may become classified as ‘persecution’ for the purposes of the Migration Act 1958 (Cth). Many of those authorities preceded the insertion of s.91R in the Migration Act, which now confirm that not every harm encountered or feared by a refugee claimant can amount to persecution for the purposes of the Refugees Convention as applied by s.36 of the Migration Act. Under s.91R(1)(b), persecution must involve “serious harm to the person”, and s.91R(2) gives instances of this. I recently explored the application of these provisions to a case of serious harassment without actual violence, in SZMGR v Minister for Immigration & Anor [2009] FMCA 174.
In the present case, the Tribunal said:
40.… Nevertheless, the Tribunal is not satisfied that the applicant is at risk of teasing or name calling or ostracism in Serbia which will amount to persecution for Convention purposes. The Tribunal is not satisfied that the applicant faces a real chance of serious harm in Serbia, in the form [of] teasing or name calling or ostracism, for a Convention reason such that he has a well‑founded fear of persecution.
In my opinion, the Tribunal’s discussion of this issue, and its conclusion, reflect no error of law and are not affected by any jurisdictional error. No argument to establish this has been presented to me.
The Tribunal also considered the applicant’s fear of future harassment or mistreatment by Serbian authorities. However, the Tribunal considered that the incident in 2000 or 2001 was an “isolated incident”. It said:
41.… The Tribunal is satisfied by the applicant’s description of his circumstances in Serbia that the authorities have not demonstrated any real interest in the applicant since that incident and the Tribunal finds that it is mere speculation on the part of the applicant that he is now, or that he will be in the reasonably foreseeable future, a person of adverse interest to the authorities in Serbia. The Tribunal finds that it is mere speculation on the part of the applicant that he is at risk of arrest in Serbia, because [he] left the country, or that he will be told to go and live in Croatia. The Tribunal is not satisfied that the applicant faces a real chance of serious harm by the authorities or the government in Serbia for a Convention reason such that he has a well‑founded fear of persecution.
The Tribunal referred to all of the concerns of the applicant, and considered them in the light of general information about the current situation of Serbia. It said:
42.… It is satisfied by that information that citizens of Serbia can safely express their political views without adverse interest from the government, the authorities, nationalists, or anyone else in the community who may hold a different political view. The applicant’s description of his individual circumstances does not indicate to the Tribunal that the persons he fears in Serbia have demonstrated any real interest in harming him for reasons of political opinion. The Tribunal is satisfied that similar conditions will continue in the reasonably foreseeable future. The Tribunal finds that the applicant can safely express his political views in Serbia without adverse interest from the authorities or the individuals he fears. The Tribunal is not satisfied that the applicant faces a real chance of serious harm by nationalists, the military, the police, or anyone else in Serbia, for reasons of political opinion such that he has a well‑founded fear of persecution.
The Tribunal accordingly found that the applicant did not have a well‑founded fear of persecution in Serbia for a Convention reason.
The applicant now asks the Court to set aside the Tribunal’s decision and to remit the matter for further consideration. I can only make these orders if I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant qualifies as a refugee and for a protection visa, or any other permission to stay in Australia.
The applicant has had the opportunity to receive free legal advice, and to file an amended application, further evidence, and written submissions, after receiving a bundle of relevant documents.
However, he relies only upon his original application, which states as its grounds:
The Minister’s delegate at DIAC and the RRT member:
§ Failed to consider all the relevant information
§ Failed to understand the circumstances of the reasons for being a refugee in the case of [the applicant]
§ Detailed in the documentation to be supplied
These grounds are completely lacking in any particulars showing how the general contentions can be related to the Tribunal’s reasoning. In fact, there has been no ‘documentation’ presented to the Court which details any argument referrable to these grounds.
The applicant today in his oral submissions was unable to present such an argument, nor has counsel for the Minister identified any concern which could give rise to jurisdictional error. The applicant’s oral submissions today amounted to his repeating to me the concerns which he explained to the Tribunal. However, it was the task of the Tribunal to form its own opinion about the applicant’s future if he returned to Serbia in relation to the risk of serious harm occurring for a Convention reason.
I can identify no ‘relevant information’ which was not considered by the Tribunal, nor any failure to address the claims made to it by the applicant.
In my opinion, the Tribunal’s conclusion was open to it on the material before it, and I am unable to discern any jurisdictional error affecting its decision. I must therefore dismiss the application.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 6 May 2009