SZOJU v Minister for Immigration
[2010] FMCA 594
•5 August 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOJU v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 594 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether there was information that formed the reason or part of the reason for the Refugee Review Tribunal’s decision that enlivened the obligations of s.424A of the Migration Act 1958 (Cth) – whether the Refugee Review Tribunal failed to deal with a claim that arose squarely on the evidence and material before the Tribunal. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 48A; 48B; 65(1); 65(1)(b); 91R; 417; 424AA; 424A; 424A(3)(a); 474; pt.8 div.2 |
| SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415 SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 Minister for Immigration and Citizenship v SZLFX (2009) 238 CLR 507 VDAU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 363 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263 ApplicantWAEE v Minister for Immigration and Multicultural Affairs (2003) 75 ALD 630 |
| Applicant: | SZOJU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 979 of 2010 |
| Judgment of: | Emmett FM |
| Hearing date: | 15 July 2010 |
| Date of Last Submission: | 15 July 2010 |
| Delivered at: | Sydney |
| Delivered on: | 5 August 2010 |
REPRESENTATION
| Solicitors for the Applicant: | Mr N. Dobbie, Dobbie and Devine |
| Counsel for the Respondent: | Mr T. Reilly |
| Solicitors for the Respondent: | Mr G. Johnson, DLA Phillips Fox |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 979 of 2010
| SZOJU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 1 April 2010 and handed down the same day.
The applicant claims to be a citizen of Serbia, a former member of the Serbian Volunteer Guard or the Srpska Dobrovojacka Garda (“SDG”), known as Arkan’s Tigers, and of Catholic faith (“the Applicant”).
The issues are whether newspaper articles about the murder of the SDG leader, Arkan, are information that enlivened obligations under s.424A of the Act; and, whether a claim arose on the evidence and material before the Tribunal that the Applicant feared harm from a past SDG member because of the Applicant’s knowledge of the past member’s involvement in weapons smuggling during the war. These issues are considered below in the context of considering whether the Tribunal’s decision is affected by jurisdictional error.
Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the Applicant’s protection visa application claims and the decision of the delegate of the First Respondent (“the Delegate”) and consideration of the Tribunal’s review and decision.
Background
The Applicant arrived in Australia on 12 December 2000 on an Italian passport issued in a false name and a subclass 976 (Electronic Travel Authority – Visitor) valid for 3 months.
On 2 March 2001, the Applicant applied for a subclass 686 (Tourist -Long Stay) visa which was granted with validity to 11 September 2001.
On 11 September 2001, the Applicant was granted a further subclass 686 visa valid to 11 December 2001.
On 6 December 2001, the Applicant applied for a subclass 820 (Partner) visa which was granted on 1 March 2002.
On 10 October 2002, the Department of Immigration and Citizenship (“the Department”) received information that the Applicant’s relationship had ended in July 2002.
On 23 December 2002, the Applicant’s subclass 820 visa expired. The same day the Applicant’s subclass 801 visa application was refused.
On 7 November 2006, the Applicant was located in Queensland unlawfully in Australia. The Applicant was granted a Bridging visa subclass E valid for one week and requested to report to the Department. The Applicant failed to do so and was detained under s.189 of the Act. The Applicant claimed at this time to be an Italian national. Italian authorities indicated the Applicant’s Italian passport was bogus and his claimed identity lacked any records for verification.
In February 2007, the Applicant claimed nationality of the former Yugoslavia. Serbian officials were unable to verify the Applicant’s identity.
On 26 February 2007, the Applicant lodged an application for a Protection (Class XA) visa with the Department under the Act.
On 15 March 2007, the Applicant was refused right of return to Italy of which he claimed to be a stateless former habitual resident.
On 3 May 2007, a delegate of the First Respondent refused the Applicant’s application for a protection visa.
On 29 October 2007, the Applicant sought Ministerial intervention under s.417 of the Act.
In April 2009, the Applicant claimed to be a Serbian national and provided a scanned copy of a passport issued by the Federal Republic of Yugoslavia.
On 14 September 2009, the Minister intervened under s.48B of the Act allowing the Applicant to file a second protection visa application.
On 7 October 2009, the Applicant lodged a second application for a Protection (Class XA) visa with the Department under the Act.
On 25 January 2010, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.
On 27 January 2010, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
On 1 April 2010, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 6 May 2010, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then s.65(1)(b) mandates that the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R of the Act expands on the notion of persecution and serious harm when considering Article 1A(2) of the Convention.
The Applicant’s application for a protection visa
By letter dated 20 August 2009, the Municipal Office of Public Order of the City of Reutlingen confirmed that the Applicant was born in the Republic of Germany on 25 March 1971 and remained there until 1981. The letter confirmed that the Applicant entered the territory of the Federal Republic of Germany on 18 September 1992 as a refugee from the former Yugoslavia. The letter recorded that the Applicant was “most recently recorded as a citizen of the former Yugoslavia”. The Applicant was granted a permit to remain in Germany but left sometime after 14 September 1999 to a destination unknown.
On 16 September 2009, the Department wrote to the Applicant’s migration agent informing her that the First Respondent had exercised his discretion to allow the Applicant to make a further application for a protection visa pursuant to s.48B of the Act. The First Respondent determined that s.48A would not apply to prevent an application for a protection visa being made by the Applicant within seven days of the date of its letter.
The Applicant had the assistance of a migration agent with his protection visa application.
The Applicant’s claims in support of his protection visa application, lodged on 7 October 2009, are accurately summarised by the solicitor for the Applicant, Mr Dobbie, in his written submissions as follows:
“The Applicant claimed to be a citizen of Serbia, although he was born in Germany.[1] He arrived in Australia on 12 December 2000, using the alias Felice Branca.[2] On 7 October 2009, the Applicant applied for a Protection visa.[3] He claimed to have joined the Serbian Volunteer Guard in 1990, a paramilitary organisation commonly known as ‘Arkan’s Tigers’. He was a personal bodyguard to the organisation’s leader, Zeljko Raznatovic (known as ‘Arkan’).[4] He claimed that when he became aware of the atrocities that Arkan was inflicting on people, he fled to Germany.[5] He claimed that in 2007, his aunt Ana (who lived in Serbia) notified his aunt Suzana (who lived in Germany) that two police went to his aunt Ana’s house in Serbia looking for him. They indicated to his aunt that he might be in Canada or Australia. At that time, the Applicant was in Australia. The Applicant became scared. He stated that he feared harm from Arkan’s men and also from those who hated Arkan, if he was returned to Serbia.[6]”
[1] CB16 at Q22. The Tribunal found that the Applicant was a citizen of Serbia: CB185 at [69].
[2] CB15 at Q4; CB17 at Q29
[3] CB1-73
[4] CB20-24; CB44
[5] CB21; CB23
[6] CB23 at Q43
In support of his protection visa application, the Applicant provided some photographs of the leader, Arkan, and members of his SDG unit. The Applicant also provided material relating to the SDG, including various newspaper reports and other documents, including the Applicant’s birth registration in Germany.
The Delegate’s decision
On 11 November 2009 and 3 December 2009, the Applicant attended interviews with the Delegate.
On 25 January 2010, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Convention.
The Applicant expanded on his claims to the Delegate. He said that his duty was to capture and imprison “enemies” and to collect ammunition, weapons and documents and hand them to his superiors. The Applicant stated that an enemy was anyone not wearing the same uniform as the SDG. The Applicant stated that when he found civilians he handed them over to his commander and that if someone else killed them it was not the same as if he had killed them. The Applicant said that he participated in between 10 and 15 “missions”. The Applicant said that he would take prisoners but if they tried to run away he would shoot them because “what else could he do”.
The Applicant stated that after a year of working as Arkan’s bodyguard he ran away because he no longer wished to take part in Arkan’s “venture”. He said that he did not want to “become rich illegally”. The Applicant said he did not like the way Arkan would steal things, sell them and then steal them back again and that he engaged in blackmail and corruption. The Delegate noted that he asked the Applicant if that was the only reason that he left the SDG. The Applicant responded that he did not agree with the mistreatment and brutality meted out to members of the SDG. The Applicant said he was frightened for his safety because he “knew too much”. Rather, the Applicant claimed that he was a “mere foot soldier paid to carry out the orders of his masters”. The Applicant was neither a confidante nor a key operative of Arkan’s.
The Delegate found that the Applicant was a volunteer member of the SDG during the period of conflict between the Republic of Serbia and Croatia in 1991. The Delegate did not accept as credible that there has been a program of liquidation of former members of the SDG or former bodyguards of Arkan. The Delegate found no independent evidence to support the Applicant’s claim of a generalised campaign directed against former SDG members associated with Arkan or any other warlord of the day.
However, the Delegate found that there was substantial evidence concerning the criminal activities and associations of wartime leaders, such as Arkan, and evidence that a number of high profile organised crime fighters in Serbia have been killed both during and since the war. The Delegate found that there was no evidence to suggest that the Applicant would fall within the profile of those that have been targeted in recent years. The Delegate noted that the Applicant did not claim to have held a position of authority within the SDG or to have been involved in negotiating criminal deals.
The Delegate accepted that the Applicant was engaged with the SDG for a brief period nearly 20 years ago. The Delegate found that the Applicant had fought with the SDG in the Eastern Slavonia district of Croatia and was engaged in ethnic cleansing of many villages and towns in that district. However, the Delegate did not accept that the Applicant would face a real chance of persecution for that reason should he return to Serbia. The Delegate found that there was no evidence to suggest that former SDG members are subject to serious harm or mistreatment in Serbia.
The Delegate found the Applicant’s claim that police approached the home of his relative in 2007 looking for him to be “largely implausible” and was not satisfied that any approach would have been in connection with the Applicant’s activities in the SDG in 1991 and 1992.
The Tribunal’s review and decision
On 27 January 2010, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. The Applicant continued to be assisted by the same migration agent.
On 2 February 2010, the Tribunal wrote to the Applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 10 March 2010 to give oral evidence and present arguments.
On 10 March 2010, the Applicant attended the Tribunal hearing and gave evidence.
The Tribunal noted that it had before it the Department’s file relating to the protection visa application, dated 7 October 2009, as well as the Department’s files relating to previous applications made by the Applicant, including a protection visa application, lodged 26 February 2007, and a subclass 820 (Partner) visa granted on 1 March 2002 and which expired on 23 December 2002. It noted that it had before it the Delegate’s decision record and other materials available to it from a range of sources.
The decision of the Tribunal is accurately summarised by counsel for the First Respondent, Mr Riley, in his written submissions as follows:
“The Tribunal accepted the Applicant’s claims that he was involved with the SDG from 1990, and had left it in 1992. However the Tribunal did not accept that the Applicant now faced any harm as a result of this, noting that he had not had a prominent position in the SDG and had not been implicated in any activities while in the SDG or subsequently that may lead to him being harmed. The Tribunal rejected the Applicant’s claims to fear harm as a Catholic, or because of the visit to his aunt’s house, or because he had information which could implicate SDG members, noting that it found his claim to this effect “greatly exaggerated”. The Tribunal concluded that the Applicant’s claimed fears of harm in Serbia were not well founded. See generally CB 184-187.”
The proceeding before this Court
The Applicant was represented before this Court by Mr Nigel Dobbie, solicitor.
On 1 June 2010 Mr Dobbie attended a directions hearing before me and the Applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the Tribunal hearing.
At the commencement of the hearing, Mr Dobbie confirmed that the Applicant relied on the grounds contained in the initiating application filed on 5 May 2010 as follows:
“1. The Tribunal failed to comply with s424AA of the Act
Particulars
(A) The Tribunal failed to comply with ss424AA(a), (b)(i), (b)(ii), (b)(iii) and (b)(iv) by:
(i) failing to orally give the Applicant clear particulars of information that it gave at the hearing on 10 March 2010 that would be the reason or part of the reason for affirming the decision under review; and or
(ii) by failing to ensure, as far as was reasonably practicable, that the applicant understood why the information was relevant to the review, and the consequences of the information being relied on in affirming the delegate’s decision; and or
(iii) by failing to invite the applicant to comment on or respond to that information; and or
(iv) by failing to advise the applicant that he may seek additional time to comment on or respond to the information; and or
(v) if there had been compliance with ss.424AA(a), (b)(i), (b)(ii) and (b)(iii), by failing to adjourn the review, if the Tribunal considered that the applicant reasonably needed additional time to comment on or respond to the information;
that information being the following:
(i) The Prosecutor of the Tribunal v Zeljko Raznajatovic also known as ‘Arkan’, Indictment 26 September 1997, IT-97-27-I, International Criminal Tribunal for the Former Yugoslavia.
(ii) Prosecutor of the Tribunal v Jovica Stanisic and Franko Simatovic, Third Amended Indictment, 10 July 2008, IT-03-69-PT, International Criminal Tribunal for the Former Yugoslavia, pg 2.
(iii) ‘Obituary Zoran Dinic’, BBC News, 13 March 2003.
(iv) BBC News, ‘Arkan back in Belgrade’, 25 March 1999.
(v) Simmons, M., ‘Mystery Witness Faces Milosevic’, New York Times, April 24 2003.
(vi) Simpson J., Arkan ‘victim of gang warfare’, BBC News, 11 June 2000.
(vii) ‘Three convicted of Arkan murder’, 26 October 2001, BBC News.
(viii) ‘Underworld boss jailed for Serbian PM killing’, Times Online, 23 May 2007.
(ix) ‘Serb president’s killers jailed’, BBC News, 18 July 2005.
2. The Tribunal failed to comply with s.424Aof the Migration Act 1958
Particulars
(A) The Tribunal failed to comply with s424A in relation to certain information
(i) by failing to give clear particulars of that information, which the Tribunal considered would be the reason, or a part of the reason, for affirming the delegate’s decision; and or
(ii) by failing to ensure, as far as was reasonably practicable, that the Applicant understood why that information was relevant to the review, and the consequences of it being relied on in affirming the delegate’s decision; and or
(iii) by failing to invite the Applicant to comment on or respond to it;
that information being the following:
(i) The Prosecutor of the Tribunal v Zeljko Raznajatovic also known as ‘Arkan’, Indictment 26 September 1997, IT-97-27-I, International Criminal Tribunal for the Former Yugoslavia.
(ii) Prosecutor of the Tribunal v Jovica Stanisic and Franko Simatovic, Third Amended Indictment, 10 July 2008, IT-03-69-PT, International Criminal Tribunal for the Former Yugoslavia, pg 2.
(iii) ‘Obituary Zoran Dinic’, BBC News, 13 March 2003.
(iv) BBC News, ‘Arkan back in Belgrade’, 25 March 1999.
(v) Simmons, M., ‘Mystery Witness Faces Milosevic’, New York Times, April 24 2003.
(vi) Simpson J., Arkan ‘victim of gang warfare’, BBC News, 11 June 2000.
(vii) ‘Three convicted of Arkan murder’, 26 October 2001, BBC News.
(viii) ‘Underworld boss jailed for Serbian PM killing’, Times Online, 23 May 2007.
(ix) ‘Serb president’s killers jailed’, BBC News, 18 July 2005.
…
5. The Tribunal failed to consider a claim made by the Applicant
Particulars
(A) The Applicant claimed that he had information relating to the smuggling of weapons from Serbia to Croatia and from Bosnia by Boris Polevic; and that he feared harm as a result of having that knowledge, given Boris Polevic’s current position as a leader of a political party in Serbia.
(i) Despite this clearly articulated claim, the Tribunal erroneously considered that the Applicant’s claim was that he had ‘information which can implicate former SDG members in human rights violations during the war’, and therefore did not consider the claim as put by the Applicant.”
During the hearing, Mr Dobbie withdrew reliance by the Applicant on Grounds 3 and 4 of the application.
In support of Grounds 1, 2 and 5 of the application, the Applicant read three affidavits of MA Rosario Xiella Devine dated 30 June 2010, 8 July 2010 and 13 July 2010. Two of the affidavits annexed a copy of the transcript and the other annexed various news reports in relation to the prosecution, gaoling and killing of Arkan.
Grounds 1 and 2
Grounds 1 and 2 contend that the Tribunal failed to comply with ss.424AA or 424A of the Act respectively in giving information to the Applicant that was the reason or part of the reason for affirming the decision under review.
Sections 424A and 424AA of the Act are in the following terms:
“MIGRATION ACT 1958 - SECT 424A
Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies--by one of the methods specified in section 441A; or
(b) if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
(2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non‑disclosable information.
MIGRATION ACT 1958 - SECT 424AA
Information and invitation given orally by Tribunal while applicant appearing
If an applicant is appearing before the Tribunal because of an invitation under section 425:
(a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so--the Tribunal must:
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information. ”
In circumstances where the information which formed the reason or part of the reason for the Tribunal affirming the decision under review did not enliven any obligation under s.424A of the Act, it is well settled that there is no jurisdictional error if the Tribunal has not given information in accordance with s.424AA of the Act (SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415).
The particulars of the information provided in support of Grounds 1 and 2 were identical. They were news reports of the prosecution, gaoling and murder of the former leader, Arkan and were attached to the affidavit of Ms Devine, affirmed 13 July 2010. In particular, the solicitor for the Applicant referred to two BBC reports about Arkan’s murder, suggesting that he was killed by criminal elements. In delivering his verdict following the conviction of three men in Belgrade, the trial judge stated that it was obvious that the motive was money but it was not clear who had ordered the murder.
The solicitor for the Applicant, Mr Dobbie, contended that the information contained in the reports enlivened the obligations of s.424A of the Act and that the Tribunal failed either to give that information to the Applicant in accordance with s.424A of the Act or in accordance with s.424AA of the Act.
Mr Dobbie submitted that the Tribunal was obliged to put to the Applicant for comment the information in those reports that suggested that Arkan was murdered by criminal elements rather than because of his past involvement with the SDG. Mr Dobbie submitted that the Tribunal should have put to the Applicant that the information may have lead the Tribunal to find that the Applicant is not at risk in Serbia for any Convention related reason.
Mr Dobbie submitted that the Tribunal used the report of Arkan’s murder by unknown criminal elements to justify its finding that any former SDG members that may seek to harm the Applicant are now criminals. The Applicant’s solicitor submitted that the Tribunal relied on that material to support its finding that it was not satisfied that some former SDG members were killed after the war for their involvement with the SDG during the war. Mr Dobbie submitted that the Tribunal relied on this material in not being satisfied that the Applicant may be killed because of his prior association with the SDG, rather than by criminal elements for reasons unrelated to his former SDG association and activities.
Mr Dobbie referred to the following finding by the Tribunal:
“The Tribunal has considered information from external sources regarding the SDG’s activities during the war, the circumstances of its former members after the war, and whether those former members are being targeted by the persons which the applicant claims to fear. The Tribunal is satisfied by the information from external sources referred to above that the applicant’s claims in this regard are not well-founded.”
The Tribunal’s decision record makes clear that the Applicant stated that he was involved with the SDG and was afraid that supporters or opponents of the SDG would seek to kill him if he returned to Serbia. He stated that the supporters would see him as a traitor and the opponents would wish to harm him for being implicated in the atrocities perpetrated by the SDG during the war.
Counsel for the First Respondent, Mr Riley, submitted that the news reports particularised by the Applicant as information that enlivened s.424A of the Act were no more than background information and did not in their terms constitute a rejection, undermining or denial of the Applicant’s claims (See SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [17]; Minister for Immigration and Citizenship v SZLFX (2009) 238 CLR 507). Mr Riley submitted that the material “in its terms” is in fact supportive of the Applicant’s claims or, at least, equivocal.
Further, counsel for the First Respondent submitted that the material was not “specifically about the applicant or another person” because the Tribunal placed no direct relevance on the information about any specific person contained in the material. Mr Riley submitted that while the information is about SDG and its members, including Arkan, that cannot make it information that is specifically about another person within s.424A(3)(a) of the Act be cause the Tribunal did not place any direct relevance on information about any specific person in the information. In support Mr Riley referred the Court to VDAU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 363 at [68]-[69] where Weinberg J stated as follows:
“[68] It seems to me that, contrary to the submission of counsel for the applicant, the information regarding overseas students was “just about a class of persons” of which “another person” was a member. The expression “other person” in s 424A(3)(a) is obviously not intended to be read literally. It would otherwise render the section meaningless, since any country information which included a reference to any other person, as a member of a class, would destroy the effect of the exception formulated in that paragraph. On the other hand, the expression cannot be defined so narrowly as to limit its scope to persons who are in essentially the same position as the applicant. If it were construed in that way, it would render the expression largely tautologous.
[69] The true position seems to me to be that the meaning of the expression lies somewhere between the competing contentions of the parties. The “other person” to which reference is made is a person whose position “might be of relevance”, in a direct sense, to the applicant’s claims. There is some support for this interpretation of the expression in the approach taken by von Doussa J in Singh to which I have earlier referred. The applicant’s parents are members of a class (overseas students who have more than one child) which is plainly of direct relevance to the applicant’s claims. The information in question is “just” about that class. It follows that it satisfies both elements of s 424A(3)(a) and falls within the exception contained therein. Accordingly, there was no obligation on the part of the Tribunal to invite comment upon that information, although of course it did so.”
Despite the well argued submissions of Mr Dobbie, I agree with the submissions of counsel for the First Respondent. The finding referred to at paragraph 58 above does not suggest that the Tribunal’s rejection of the Applicant’s claim that he may be targeted by SDG members and supporters because he is considered a traitor, was based on Arkan’s murder. It was material which supported the Tribunal’s finding that past members of the SDG were not targeted by former SDG members or opponents of the SDG because of activities of former SDG members during the war.
The Tribunal noted that it had considered information from external sources regarding SDG activities during the war, the circumstances of its former members after the war and whether those former members were targeted by the persons in respect of whom the Applicant claimed to fear persecution. The news reports were part of that information. They were about a class of persons, namely former SDG members, of whom Arkan was a member. As such, the news reports are information that is specifically excluded from the obligations of s.424A of the Act by reason of s.424A(3)(a) of the Act.
The Tribunal found that the targeting of former SDG members after the war was because of the activities they were engaged in following the war rather than what they did during the war or merely because they were members of the SDG. The Tribunal found that the Applicant had not been implicated in any activities during the war, or since 1992, which may attract the adverse interest of either former SDG members, SDG opponents or authorities in Serbia. Accordingly, the Tribunal found that the Applicant’s fear is not well-founded.
The Applicant himself gave evidence that former SDG members were involved in criminal activities post-war and, indeed, in his protection visa application stated that sixty percent were now criminals.
The Tribunal accepted that the Applicant witnessed distressing incidents during his involvement with the SDG. However, the Tribunal found that there was no real chance that the Applicant would be subjected to persecution in Serbia by either former members or supporters of the SDG, opponents of the SDG or authorities in Serbia because of his previous association with the SDG.
The findings of the Tribunal were open to it on the evidence and material before it and for the reasons it gave. None of the information particularised in Grounds 1 and 2 was information that enlivened any obligation under s.424A of the Act. To the extent that the information was not given strictly in accordance with s.424AA of the Act, as stated above, does not establish any jurisdictional error on the part of the Tribunal.
Moreover, I note that the news reports were given to the Applicant at the hearing for comment. The Applicant chose to make no further comment or submission in respect of the news reports.
Accordingly, Grounds 1 and 2 are not made out.
Ground 5
In support of Ground 5, the Applicant’s solicitor, Mr Dobbie, contended that the Tribunal had failed to consider the Applicant’s claim that he had information which could implicate former SDG members in weapons smuggling during the war and that he feared persecution in Serbia by Boris Polevic, a former SDG member now in political power and who the Applicant claimed had been involved in weapons smuggling during the war.
In support of the contention, Mr Dobbie referred to the following extracts of the transcript from the Tribunal hearing.
“Q25 And who do you think is going to hurt you now?
A(I) Well, these people are still in power. They will injure me, they will hurt me. His best man, he is now a leader of the policital party, that political party.
Q26 Who are you talking about?
A(I) I’m talking about Arkan’s best man.
Q27 So you were, you’re worried that people from that group are now going to harm you, so Arkan’s associates and collegues.
A(I) Arkan’s men. People who worked with Arkan and for Arkan, they are now people with power, people with strength.
Q28 And why would these people be interested in hurting you?
A(I) First because I deserted the unit in 1992. I ran away from it.
Q29 Anything else?
A(I) I was his personal bodyguard. I knew certain things, how certain things developed, how certain events occurred
Q30 So you are saying that –
A(I) What was happening.
Q31 Yeah, but the whole world knows what was happening, it’s been pretty well documented. So what information did you have which is not publicly available which, you know, these people would not want to get out?
A(I) Not only one information, it’s more than one information. What they’ve done to obtain money, how they were selling weapons, black marketing weapons.
Q32 I’ve spent the last few days reading material about Arkan, the organisation and what happened afterwards. There’s a lot of information about that organisation, that man and his associates and it’s pretty much everything has been exposed. The atrocities, the criminal activities, the black market, the grey market, everything. There are books written on it. So I’m not sure that there’s a lot of information that’s still hidden from the public with regards to that guy and what he did before he was killed. But obviously you feel that you have something more or something that still places you at risk, so what information do you have that might place you at risk?
A(I) The information I have is related to smuggling of weapons from Serbia to Croatia and from Bosnia. People who were involved in that black marketing are now in power in Serbia. Maybe I’m just a little Johnny compared to what happened afterwards, but up till 1992 I was knowledgeable of these things.
Q33 So who are you talking about? Give me some names. I’d better have a translation.
A(I) These events happened about eighteen years ago.
Q34 Mmm.
A(I) My memory is faded a bit, but I can tell you the name of his best man who is in power in Serbia now. His name is Boris Polevic. The others, as you know, the unit has been dismembered, some are immigrated, some got killed, some left the country and are very hard to trace now.”
…
“Q180 Yeah. It doesn’t serve any real purpose unless you can tell me why that is relevant for you now, how it’s going to affect your situation now.
ADVISER
Member, he mentioned before a person called Borislav [Boris Polevic]…
TRIBUNAL MEMBER
Q181 Yeah.
ADVISER
And he said that the –
A(I) …
ADVISER
Sorry?
A(I) He just said it’s… it’s not…
ADVISER
Sorry. I couldn’t… before. And he said that that person is in power now in Serbia and that he, as I understand here, that that person was part of Arkan’s Tigers at the period when he was in that unit. So again, I don’t know the answer to this bit it might be important to know why he mentioned him in relation to the things that he saw at that time and the fact that this man is now in a position of power in Serbia.
A(I) He’s his best man, he was in Arkan’s unit and he’s now in power… Arkan’s political party.
TRIBUNAL MEMBER
Q182 And why is this man’s, this man relevant to you and your situation?
A(I) He is important because I know him, I know about his dealing with Arkan, even before they became like best man.
Q183 Considering he’s a close ally of Arkan, don’t you think everybody realises that he’s a close ally of Arkan’s, that he was part of what Arkan was about? I mean, it’s not like you’re going to be telling the world something that they haven’t already figured out themselves.
A(I) The whole world know, but I’m concerned about my own wellbeing, I’m concerned about my life because if I go back there he will find out that I am there. If he finds out that I am there, he will like to remove me because there’s still this criminal backgrounds, criminal activity and he would like to eliminate me. They would like, actually, sorry, he said they would like. He mentioned him and he said, they would like to eliminate me, remove me.
Q184 And why would they want to do that?
A(I) Because I know… at that time with the Arkan, within his compound…
Q185 Now, considering that there would have been at any one time about four or five hundred people involved with Arkan and all of them would have the kind of information that you have, and many of them have more extreme information, in fact information that was very dangerous to Arkan when he was, when he gained the attention of the Tribunal, there doesn’t seem to be any sort of campaign to get rid of all those people. Most of them are still around in Serbia. See, most of Arkan’s Tigers, the foot soldiers, the ordinary people, not the leaders, just basically disappeared back into society. Nobody seems to be going after them now.
A(I) I can’t comment about these people because I haven’t been there, I’m not there now.
Q186 No. And I think that’s part of the problem. That’s why fear grows even more intense, because you haven’t been there for twenty years. And I don’t know how informed you are about what’s going on there, because your memory of it is still 1992 when you were last there. And I think some of the things you’re telling me sound like it’s still 1992 and it’s not 1992, it’s a long time since then. Anyway, that, I think we’ve done that subject too. Anything else before we start winding up?” (emphasis added)
Mr Dobbie submitted that the Tribunal considered only the Applicant’s claims that he had information that could implicate former SDG members in human rights violations during the war.
Mr Dobbie submitted that the Applicant stated that he had information on Boris Polevic, a former SDG member, who would kill him if he returned to Serbia. Mr Dobbie submitted that the Tribunal stated that the Applicant was asked if he feared any particular individuals and then incorrectly stated that the Applicant did not provide names of particular individuals but referred generally to “people in power”. Mr Dobbie submitted that the Applicant plainly named Boris Polevic and the Tribunal was incorrect to state that the Applicant had not provided the names of particular individuals.
Mr Dobbie contended that the Applicant’s claim of a fear of Boris Polevic squarely arose on the material and evidence before the Tribunal and it was obliged to consider that claim (See NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 at [58]).
However, a fair reading of the transcript extracts referred to above make clear that the Applicant’s claim was that he feared harm from “Arkan’s men. People who worked with Arkan and for Arkan, they are now people with power, people with strength.” The Applicant stated that he had information relating to the smuggling of weapons from Serbia to Croatia and from Bosnia and that people who were involved in that black market are now in power in Serbia. The Applicant stated that up to 1992 he was very knowledgeable of those matters. Up to that point in the transcript, the Tribunal’s summary of its exchanges with the Applicant is clearly accurate. The Tribunal’s summary of that exchange is as follows:
“The applicant stated that he was involved with the SDG and he was afraid that supporters or opponents of the group will seek to kill him if he returns to Serbia. He stated that its supporters will seek to harm him for being a traitor and its opponents will harm him for being implicated in the atrocities perpetuated by the group. He was asked if he feared any particular individuals. He did not provide names of particular individuals but referred generally to “people in power”.”
The transcript makes clear that the Tribunal then asked the Applicant who he was talking about and to “give me some names”. The Applicant answered that the events happened about 18 years ago, that his memory had faded a bit but that the name of Arkan’s best man is Boris Polevic and he is in power in Serbia now. The Tribunal’s summary of that exchange between the Tribunal and the Applicant is as follows:
“The applicant stated that he knew things which Arkan’s supporters which had not been exposed (sic) and there were still persons who would not want the information exposed. The Tribunal asked the applicant to explain what information he had which in his view would incite Arkan’s supporters to kill or harm him. He stated that he knew a lot of things. The Tribunal asked the applicant if he had damning information regarding any specific individuals he could name. The applicant provided vague responses.”
Mr Dobbie submitted that the Applicant’s claim was of a fear of persecution in Serbia by former SDG members, including Boris Polevic, because he knew of their involvement in weapons smuggling during the war. However, the Applicant did not seek to elaborate on any further information he may have involving Boris Polevic beyond what was publicly known or any other information that the Applicant had on activities of former SDG members that was not publicly known. Further, the Applicant had made no such claim to the Delegate either in his written claims or at either of the two interviews.
The Tribunal’s summary is an accurate reflection of the Applicant’s evidence. The Applicant did not elaborate on a fear of Boris Polevic beyond the assertion that Boris Polevic had been one of the former SDG members involved in weapons smuggling during the war and that the Applicant knew of his activities and that Boris Polevic now held a position of power in Serbia.
However, it is also plain from the transcript that the Tribunal put to the Applicant that Boris Polevic’s involvement with Arkan was well known. The Applicant agreed that the whole world knew about Arkan and Boris Polevic. However, the Applicant continued to assert that if Boris Polevic found out that the Applicant was in Serbia he would seek to eliminate the Applicant “because there is still this criminal background, criminal activity”, but he could not explain further why Boris Polevic wished to harm him.
The Applicant was represented throughout the review process and made a post-hearing submission that was taken into account by the Tribunal. The migration agent also attended the Tribunal hearing. At the end of the hearing, the Tribunal asked the Applicant if there was anything else that he wished to tell the Tribunal or anything else he wished to ask before the hearing finished. The Tribunal also put to the advisor that the advisor had not indicated that there was anything more that needed to be provided. Nevertheless, the Tribunal gave the Applicant a further two weeks to make any further submissions. Ultimately, no further submission was received by or on behalf of the Applicant.
Counsel for the First Respondent submitted that the Applicant’s claimed knowledge of weapons smuggling was adequately addressed by the Tribunal’s conclusion where it stated as follows:
“The Tribunal considered the applicant’s claim that he has information which can implicate former SDG members in human rights violations during the war. However, after discussing this claim with the applicant it became apparent to the Tribunal that the applicant did not have any information regarding individual members of the SDG which will implicate them in human rights violations or any information which has not already been exposed and investigated since the war ended. The Tribunal has formed the view that the applicant greatly exaggerated the information he has about individual members of the SDG and the risk he now poses to those members. The Tribunal is not satisfied that the applicant has the relevant information or that he is at risk of harm by persons associated with the SDG because he has information about their SDG activities during the war.” (Emphasis added)
In particular, counsel for the First Respondent referred to the Tribunal’s finding that the Applicant had “greatly exaggerated the information he has about individual members of the SDG and the risk he now poses to those members”.
The Applicant’s knowledge of information about Boris Polevic’s weapons smuggling during the war arose during the course of the Applicant giving evidence. It arose out of questioning by the Tribunal and did not, in my view, identify a further claim of a separate reason for a fear of persecution. It was no more than a further particular of information that the Applicant claimed to have about former SDG members activities during the war. As stated above, the Tribunal ultimately found that the Applicant’s fear of persecution for that reason was not well founded in light of the widespread knowledge of the information of the illegal activities of SDG members during the war.
A fair reading of the Tribunal’s decision record and its findings makes clear that the Tribunal did not accept that the Applicant feared Boris Polevic for any Convention related reason. The Tribunal specifically rejected the Applicant’s claim to fear persecution because of knowledge he had of the illegal activities of former SDG members during the war. Boris Polevic was a former member of the SDG. In the circumstances, the Tribunal’s finding of greater generality about the Applicant’s knowledge of the illegal activities former SDG members during the war disposes with the need for any particular finding in respect of Boris Polevic.
Moreover, in not accepting that the Applicant had any knowledge about the activity of former SDG members which would put him at risk of persecution for a Convention related reason, the Tribunal again was making a finding of greater generality that included any finding about the Applicant’s knowledge of Boris Polevic’s weapons smuggling activities during the war. The Tribunal found that all such activities had already been exposed and investigated during the war.
The Applicant’s clearly expressed claim was of information which could implicate former SDG members in human rights violations during the war. As stated above, the Tribunal was not satisfied that the Applicant had any particular information about human rights violations during the war or any information that had not already been exposed and investigated since the war ended. That finding includes a rejection of a well founded fear on the part of the Applicant in respect of any information that had not already been exposed since the war.
The Applicant did not identify any further information beyond the allegation of knowledge of weapons smuggling during the war and that Boris Polevic was a person who had been involved in those activities and was now in power in Serbia. It is clear from the transcript that the Applicant accepted that the information about weapons smuggling by SDG members during the war was publicly known. In the circumstances, again, the Tribunal’s finding that the Applicant did not have any information not already publicly exposed is a finding of greater generality that disposes of the need to make a specific finding about the Applicant’s knowledge of weapons smuggling during the war, including any involvement by former member Boris Polevic. As stated above, any finding about the activities of former member Boris Polevic was necessarily subsumed in the Tribunal’s finding of greater generality. The Tribunal was not satisfied that the Applicant had any information that placed him at risk of harm from persons associated with the SDG because of information he had about their SDG activities during the war. The Tribunal found that the Applicant had greatly exaggerated the information he had about SDG members.
Those findings were open to the Tribunal on the evidence and material before it and for the reasons it gave (See ApplicantWAEE v Minister for Immigration and Multicultural Affairs (2003) 75 ALD 630 at [47]).
In the circumstances, I do not accept that the only information the Tribunal considered was the Applicant’s information about the involvement about of former SDG members in human rights violations during the war alone.
Accordingly, Ground 5 is not made out.
Conclusion
A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the Applicant matters of concern it had about his evidence and noted the Applicant’s responses. The Tribunal put to the Applicant independent country information before it and invited the Applicant to comment upon it. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of Emmett FM
Date: 5 August 2010
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