VWPZ v Minister for Immigration

[2007] FMCA 1067

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VWPZ & ANOR v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1067

MIGRATION – Refugee Review Tribunal – Judicial review – whether requirement for a hearing met by tribunal – whether applicant misled by nature of questions put to him – whether all claims dealt with – application refused.

Migration Act 1958, ss.420, 425

De Silva v Minister for Immigration & Multicultural Affairs (2000) 98 FCR 364
VWPZ & Anor v Minister for Immigration & Anor [2005] FMCA 1552
Luuv Renevier (1989) 91 ALR 39
W389/01A v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 432
SCAR v Minister for Immigration and Multicultural & Indigenous Affairs [2003] FCAFC 126

Applicants: VWPZ & VWQA

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: MLG 949 of 2006

Judgment of: Riethmuller FM

Hearing date: 29 January 2007

Date of last submission: 29 January 2007

Delivered at: Melbourne

Delivered on: 12 July 2007

REPRESENTATION

Counsel for the Applicant: Mr Krohn

Solicitors for the Applicant: Zeljko Stojavic Barristers & Solicitors

Counsel for the Respondents: Ms Burchell

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application be dismissed.

2. The applicant pay the respondent’s costs fixed at $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 949 of 2006

VWPZ & ANOR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicants are a de facto couple from the Yugoslav Republic of Macedonia.  They arrived in Australia on 9 May 1996.  On 4 October 2002 they applied for a protection visa.  The second applicant relied upon the circumstances of the first applicant. On 19 December 2002 the Minister’s delegate refused to grant a protection visa and subsequently the applicants applied to the Refugee Review Tribunal on 10 January 2003. 

2. The decision of the delegate was affirmed by the Tribunal on 30 January 2004, following which the applicants sought relief in the Federal Magistrates Court by way of judicial review. On 28 October 2005 the decision was set aside by McInnis FM in VWPZ & Anor v Minister [2005] FMCA 1552. The Tribunal conducted a further hearing on 19 January 2006, handing down a decision on 28 June 2006. The later decision of the Tribunal again affirmed the decision of the delegate and it is this decision which is the subject of the application.

3. The first applicant’s claim for protection was on the basis that he was fearful of being persecuted for his lack of response to requests to perform duty in the military reserve. He said that he was fearful of persecution by Albanians.  The Tribunal member recounts the detail of the applicant’s crimes, as set out by his adviser, at pages 5 to 6 of the decision as follows:

   He stated that the reason the applicant came to Australia was to ‘avoid the war conflict in the former Yugoslavia and to save his life and the lives of his family’.  He stated that the applicant was a member of a Special Unit for [OMITTED]Reservists and he knew he would be called to ‘take part in the conflicts’. 

   He stated that the applicant completed his military service in [OMITTED] at the age of [OMITTED] in the [OMITTED] unit; because of his physical attributes he was asked to serve in reserve units of the [OMITTED].  He claims that the [OMITTED] were reorganised into three special groups one of which was called the “[OMITTED]”.  These groups operated like paramilitary terrorist groups and were set on eradicating Albanian enemies.  The applicant did not want to be involved ‘in atrocities of innocent people’.  The turning point was an incident in Dracevo in late 1994 when he was called by the [OMITTED] Unit.  He along with other, were ordered to disperse people gathered in front of the government-controlled Macedonian TV building and prevent them from entering the building.  He did not want to be involved in this action.  He along with two friends handed in their weapons to the police station and refused to cooperate.  The commanding officer then told them that someday somewhere they would regret this action and would be made to pay for it.  He then thought that the commander considered him a traitor and anti-Macedonian. 

   He did not expect to receive any more call-up notices, however as the tension in Kosovo was increasing he was called up more often.  Sometimes he would respond to the calls sometimes he would avoid them saying that he was sick or that he had to finish some urgent work which could not be delayed.  The adviser stated that the applicant is a conscientious objector and he believed that the Police Reservists should not be used to kill innocent civilians.  He also knew that in ‘war conditions’ the penalty for disobedience is death.  If he remained in Macedonia and articulated his objections he would be severely punished, even killed.  He could not cope with the fact that in order to remain in the country, of which he was a fierce patriot, he was supposed to kill his Albanian neighbours.  He also feared that if he were to involve himself in such activities, the Albanians who had intelligence about the “Lions” and other Police Reservists would harm him.

   …

   At the time he applied for a Protection Visa in October 2002 the war in Macedonia was finished but the situation in the country was not safe as it is not safe now.  There have been some disappearances of citizens.  If he were to return to Macedonia he claims he would be under the direct command of [OMITTED] who is currently before the Hague Tribunal to answer charges of committing war crimes.  The applicant cites some reports from the Institute of War and Peace Reporting (IWPR) which purport to show that the police were transformed into the paramilitary arm of the VMRO.(The report was attached to the submission-2002).  He claims that if he were to return to Macedonia he would have to be part of these forces.  The adviser claims that the applicant would be considered a deserter and probably jailed and tortured by the police.  Articles are cited purporting to document instances of such police torture (texts provided-2003).

   …

4. The applicant’s adviser provided a certified copy of his passport on 23 December 2005 and on 19 January 2006 provided eight photographs of the applicant in uniform, a further copy of his passport, together with his driver's licence and army service record book (see page 7-8 of the decision).

5. The Tribunal notes that in the applicant’s military record book shows his service in 1977 to 1978, but is silent with respect to any period of service in the Reserves. The applicant advised the Tribunal that he had no documents with respect to his time in the Reserves, and confirmed that the record book only attested to his having completed his national service.  The Tribunal at page 9 go on to state:

   He stated that until 1990 he had to present himself for Reserve duties; there was no chance to refuse.  After independence he did reservist duty in protecting Macedonian strategic objectives at the time that the Yugoslav army was withdrawing.  A deal had been done with the Yugoslav army and Milošević.  He had a personal conflict with the commander.  He stated that the framework agreement (FWA) presents a picture that all is well but many things happened after that.

6. The Tribunal made a number of findings, including:

   The Tribunal accepts that between 1978, when he finished military service he did perform reservist duties up until the time of independence he was performing reservist duties when the Yugoslav forces were withdrawing from Macedonia.  At that point he states that there was an agreement for this to happen between Milosevic and the government; during these duties they were unarmed.  His military record book which he supplied is from the former Yugoslavia, it does not record any reserve service after the national service which finished in 1978 but the Tribunal has given the benefit of the doubt and accepted that applicant did perform reserve duties until the time of independence. 

   The Tribunal asked the applicant whether he had any documents which could attest to what he subsequently claimed, i.e. service in a reservist until called a rapid response until between the time of independence and the time he left for Australia.  The applicant stated that he did not have such proof.  In the discussion about the call-up notices which he did not respond to, the applicant stated that he did not respond to the ones in 1993-94 (one to two a year) and subsequently.  The tribunal asked the applicant why he was not sought and punished for ignoring the call up notices during the period from 1993-94 to May 1996 when he left for Australia.  He stated that it was because he was a sportsman and a well regarded person in the community.  The absence of evidence of any reservist duty after independence, the apparent lack of interest by authorities of pursue his claimed non-response for a considerable time, lead the Tribunal not to be satisfied that the applicant was ever called up by the Macedonian state to perform reservist duty.  It follows that if does not accept the claims made by the applicant and his de facto spouse to the previous Tribunal that he was a member of the rapid response unit or that he had any association with the until called the ‘Lions’, which, in any event, was set up on 2001, when the applicant was already in Australia, nor does the Tribunal accept that he is liable for military service of whatever kind in the Republic of Macedonia.  The applicant has not provided any evidence in support of the contention that the military objection which he owed to the Yugoslav state is valid for the Republic of Macedonia, such evidence as there is, that since 1991 he was not sought to perform such military service, supports the view that he did not and does not have an obligation via-à-vis Macedonia.

7. The Tribunal ultimately concluded that the applicant did not have a military service obligation in Macedonia and that, as such, he did not face a real chance of persecution for reason of his political opinion, ethnicity or any other Convention reason, now or in the foreseeable future. 

8. The grounds of the application as set out by the applicant are as follows:

   1.  The decision of the Tribunal was made without jurisdiction or was affected by an error of jurisdiction in that the Tribunal acted in breach of statutory requirements for the making of the decision.

   PARTICULARS

   (a) The Tribunal in breach of its obligations under any or all of sections 420, 425 and Part 7 of the Migration Act 1958 did not allow the applicants any proper opportunity to understand, or to give evidence and to present arguments in relation to, the issue of the first applicant’s continuing obligations and situation as an army reservist in Macedonia after that country’s independence and separation from Yugoslavia, including the question whether the first applicant had any such obligations or situation;

   (b) The Tribunal in all the circumstances of the case had a duty, but failed, to exercise its powers under the Migration Act 1958 including powers under sections 414, 420, 424, 424B, 424, 427 by inquiring further concerning the issue of the first applicant’s continuing obligations and situation as an army reservist in Macedonia after that country’s independence and separation from Yugoslavia, including the question whether the first applicant had any such obligations or situation.

   2.  The decision of the Tribunal was made without jurisdiction or is affected by an error of jurisdiction in that the Tribunal denied natural justice or procedural fairness to the applicants.

   PARTICULARS

   The Tribunal did not allow the applicants any proper opportunity to understand, or to give evidence and to present arguments in relation to, the issue of the first applicant’s continuing obligations and situation as an army reservist in Macedonia after that country’s independence and separation from Yugoslavia, including the question whether the first applicant had any such obligations or situation.

   3   The decision of the Tribunal was made without jurisdiction or is affected by an error of jurisdiction in that the Tribunal failed to have regard to a relevant consideration or considerations;

   PARTICULARS

   The Tribunal failed to have regard to the question whether the first applicant would be killed or harmed if he should return to Macedonia because he would be viewed as a coward for having refused to answer his call up or for having refused to fight an army reservist.

Ground One

1. This ground is in two parts.  The first is a complaint that the applicant was not given a proper opportunity to present his case on the question of whether or not he had ongoing obligations as a reservist, and the second is a complaint that the Tribunal failed to make enquiries concerning the question of the applicant’s continuing obligations as an army reservist.

2. With respect to the first issue the applicant relied upon ss 420 and 425 which provide:

   420.  [Refugee Review Tribunal’s way of operating]    (1) The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

   (2)    The Tribunal, in reviewing a decision:

   (a)     is not bound by technicalities, legal forms or rules of evidence; and

   (b)     must act according to substantial justice and the merits of the case.

   …

   425.  [Tribunal must invite applicant to appear] (1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

   (2)    Subsection (1) does not apply if:

   (a)     the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or

   (b)     the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

   (c) subsection 424C(1) or (2) applies to the applicant.

   (3)    If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

3. Counsel for the applicant relied upon the comments of the Full Court in De Silva v Minister for Immigration & Multicultural Affairs (2000) 98 FCR 364 at 367 where the court said:

   [33]  The applicant notes that the Full Court decision of De Silva v Minister for Immigration & Multicultural Affairs (2000) 98 FCR 364 concerned whether the obligations under s425(1), obliged the Tribunal to identify issues and draw them to the visa applicant’s attention for his response. The Court (Hill, Carr and Sundberg JJ) rejected that contention. At 367, their Honours said:

   “The governing word in s425(1) is “invite”.  The purpose of the invitation is to enable an application to attend the hearing so that he or she can give evidence and present arguments relating to the issues in the case.  On the plain words of the subsection the obligation is to invite the application to appear.  It does not impose on the Tribunal an obligation to identify issues and draw them to an applicant’s attention.”

4. The applicant also relied upon the comments of the Full Court in SCAR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 126 where Gray, Cooper and Selway JJ said:

   [33] Pursuant to s 425 of the Act the Tribunal is under a statutory obligation to issue an invitation to an applicant to attend a hearing. That indicates a legislative intention that an applicant is to have an opportunity to attend an oral hearing for the purpose of giving evidence and presenting argument. The invitation must not be a hollow shell or an empty gesture: Mazhar v Minister for Immigration and Multicultural Affairs (2000) 183 ALR 188 at [31].

   [34] In Liu v Minister for Immigration and Multicultural Affairs (2001) 187 ALR 348 the Full Court of this Court considered the nature of the obligation imposed on the Tribunal by s 425 of the Act. The question before the Court in that case was whether, if the Tribunal constituted for a particular review had been reconstituted after an oral hearing, the second member was required by s 425 to invite the applicant to appear again and give evidence and present arguments to that new member. Their Honours held that no such requirement was imposed by s 425 and went on to make the following observations, at [44]:

   `The right to a hearing is clearly an important and central right in the merits review system established by Pt 7 of the Act. This has been acknowledged in other contexts: see for example Amankwah v Minister for Immigration and Multicultural Affairs (1999) 91 FCR 248 at [13]; Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 at [20]. The express qualifications in s 425 of the right to be invited to appear concern a limited set of circumstances. The right to be invited exists unless the applicant's appearance is unnecessary from the applicant's point of view because the review will be decided on the papers in favour of the applicant or the applicant consents to the invitation not being extended, or the applicant forfeits the right. The fact that the right can be lost in certain specified circumstances, and the nature of those circumstances, only serves to underline the parliament's intention that, at least generally, there should be a right to be invited to appear before the tribunal.

   Moreover, while it is not necessary to determine the question for the purposes of this appeal, we do not agree with the minister's submissions that the applicant's right to appear before the tribunal was diminished to a merely formal right to be invited by the changes made to s 425 by the Amendment Act. As we have noted, the Amendment Act provided a new right to present argument before the tribunal and to receive notice of the hearing, as well as a right to be invited to comment on adverse material. Certainly there is nothing in the explanatory memorandum to indicate that the right to be invited to appear was intended to be reduced to a merely formal right.'

   [35] Section 425 is not a code setting out all of the requirements for a fair hearing by the Tribunal. For example, s 425 is directed to the invitation, rather than the hearing itself - this suggests that some of the entitlements which might normally fall within the usual or common law conception of procedural fairness, such as a duty (if any) to give reasons, are not encompassed by s 425. This does not mean that there is no such obligation - only that the obligation (if it exists) must be found elsewhere in the Act or in the common law. But what is clear is that the Parliament has made compliance with s 425 of the Act a necessary condition and element of a fair hearing by the Tribunal.

   [36] It is clear that s 425 of the Act does not require that the Tribunal actively assist the applicant in putting his or her case; nor does it require the Tribunal to carry out an inquiry in order to identify what that case might be: Chen v Minister for Immigration and Multicultural Affairs [2001] FCA 1671.

   [37] On the other hand, it is also clear that s 425 of the Act imposes an objective requirement on the Tribunal. The statutory obligation upon the Tribunal to provide a `real and meaningful' invitation exists whether or not the Tribunal is aware of the actual circumstances which would defeat that obligation. Circumstances where it has been held that the obligations imposed by s 425 of the Act have been breached include circumstances where an invitation was given but the applicant was unable to attend because of ill health: Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 140. They also include circumstances where the statements made by the Tribunal prior to the hearing have misled the applicant as to the issues likely to arise before the Tribunal: VBAB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 804. They also include circumstances where the fact or event resulting in unfairness was not realised by the Tribunal. For example, circumstances such as where the applicant was invited to attend and did attend before the Tribunal, but was effectively precluded from taking part because he could not speak English and a translator was not provided or was inadequate: Tobasi v Minister for Immigration and Multicultural Affairs [2002] FCA 1050; W284 v Minister for Immigration and Multicultural Affairs [2001] FCA 1788.

   [38] It is clear from its terms that compliance with s 425 of the Act is a precondition to the valid exercise of the Tribunal's jurisdiction. Failure of the Tribunal to comply with the requirements of s 425 of the Act involves a `jurisdictional error'.

1. The applicant also points to findings in the first decision of the Tribunal (which was overturned by McInnis FM) where at page 21 the Tribunal member accepted that the applicant was posted to the police reservists and that he was a member of the special unit for rapid intervention which was responsible for providing security at important government sites and important official motorcades.  It is argued that whilst this finding is not binding on the Tribunal in the decision now under review, it provides a background for the understanding that the applicant may have had as to the breadth of the issues before the tribunal.

2. Counsel for the applicant carefully referred to various passages of the transcript.  At the commencement of the hearing the applicant advised the member:

   There are so many things to tell, but I don’t know what you’re interested in.  (at T 7.18)

3. It is apparent that the Tribunal member had some difficulty keeping the applicant focused on the issues relevant to the Tribunal, but by page 8 of the transcript the member is clearly advising the applicant that he would like to commence by exploring the question of whether or not the applicant left Macedonia without answering call-ups for his reservist service.  The Tribunal member advised the applicant that he was trying to establish what the applicant’s obligations were to the military service unit (T 10.26 and T 11.10).

4. The particular passage relied upon by the applicant is as follows:

   MEMBER: What did you give me that book for then?  What does that prove?  What does that show, that booklet?

   INTERPRETER: That I was serving national service.

   MEMBER: There was never any question about that.  Nobody has ever disputed that you did your national service.

   INTERPRETER: Because I was asked to provide the book which will prove that I was serving national service.

5. However, the passage cannot be read in isolation.  The member goes on to make clear the nature of his enquiries of the applicant saying:

   MEMBER: You do not have anything that you can show me that tells me that you were a member of that group that you’ve just said?

   INTERPRETER: That’s very hard to provide – to get that kind of document as proof.  That’s impossible, because to ask for that proof, I have to ask the commander who actually I didn’t…

   MEMBER: Somebody must have written you a letter saying, “Dear Mr [VWPZ], you are posted to this particular group as of such-and-such a date.”

   INTERPRETER: I don’t know if you’re familiar with the way – how the managing or the document and – most of the works were done between – in that small community, actually you were not able to be identified as a reservist because that can make the public angry because nobody is able to have those documents for the reservists.

   MEMBER: Can you give me the address of the headquarters of this group?

   INTERPRETER: The address is the Ministry of Internal Affairs of Macedonia.

   MEMBER: Yes, but where is it?  Where did you go to report when you were called?

   INTERPRETER: It’s in Skopje.

   MEMBER: Yes, I understand that.  I know that, but where did you report when you had to go to this place?

   INTERPRETER: There were different stations like – depends on which part of the city you are, because I lived in the suburb called [OMITTED] and that was under [OMITTED]municipality, and I belonged to that one.

   MEMBER: So where did you go when you were called? 

   INTERPRETER: We were taking different actions.  Like, in 1992 we were called to protect the police station in [OMITTED] which is… 

   MEMBER: Yes, I understand that.  I mean…

   INTERPRETER: To protect it. 

   MEMBER: When you were called to report to this unit, where did you go?  Where was its headquarters? 

   INTERPRETER: At the police station, and we were all gathering there – got our assignments, and everyone had their particular assignment and had to deal with it.

6. Later in the hearing the Tribunal member asked the applicant:

   MEMBER: You said to me before that before you left for Australia you refused to serve a couple of times.  Why weren’t you followed up then?  Why would they do it now, 10 years later?  Why didn’t they look for you and punish you, as you claim, during that time?

7. The submission on behalf of the applicant was that the suggestion to the applicant that nobody has ever disputed that he did his national service misled him or diverted his attention from the real issue, which was whether or not he had answered his call-ups as a reservist. 

8. In viewing the transcript of the hearing as a whole, and in particular the passages set out above, it appears to me that it was clear in the hearing that the Tribunal member was not disputing that the applicant had undertaken his national service.  The Tribunal was continuing to make enquiries for evidence of the extent, if any, of reservist duties that the applicant had actually undertaken.  In these circumstances, I am not satisfied that this ground is made out with respect to the first particular. 

9. With respect to the question of enquiries, the applicant relied upon Luuv Renevier (1989) 91 ALR 39 where the Full Court of the Federal Court found that a decision may be unreasonably made in circumstances where, to the knowledge of the decision-maker, factual material which is readily available and likely to be determinative of a case has not been obtained.

10. In more recent times in W389/01A v Minister for Immigration & Multicultural Affairs [2002] FCAFC 432 the Full Court considered the extent of any obligation upon the Tribunal to make enquiries. In that case Lee J said:

    [61]It may be accepted that no general duty is imposed on the Tribunal by s 427(1)(d) of the Act. (See: Minister for Immigration & Ethnic Affairs v Singh (1997) 74 FCR 553 at 560-561; Re: Minister for Immigration & Multicultural Affairs; Ex parte Cassim (2000) 175 ALR 209 at [13]). However, if circumstances exist which show the need for further enquiry to be obvious, and the means for conducting such an enquiry to be reasonably available, those facts may show the refusal of the Tribunal to exercise such a power to have been arbitrary or capricious. (See: SCAZ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1377 per von Doussa J at [35]-[37].) Before the failure of the Tribunal to exercise the power granted to it by s 427(1)(d) of the Act may be said to disclose such a ground of review, it will be necessary for facts to be established that show the conduct of the Tribunal to have been arbitrary or capricious. If that requirement is satisfied, the Tribunal may be said to have made a determination in the absence of jurisdiction or authority and ground for review of such a determination will arise under s 476(1)(b), (c) and perhaps (e), of the Act. (See: Azzi v Minister for Immigration & Multicultural Affairs [2002] FCA 24 at [112]-[113]).

    [62] His Honour was of the view that it was remarkable that the Tribunal did not use the power provided to it by s 427(1)(d) when the failure so to act may have done serious injustice to the appellant, and noted that the conduct of the Tribunal was "compounded by the fact that the Tribunal member treated the inauthenticity of the `warrant' as a reason for treating the [appellant] as a person unworthy of belief".

    [63]His Honour said that failure to seek readily obtainable information may have the effect of making a decision unreasonable and referred to Luu v Renevier (1989) 91 ALR 39 at 49-50. His Honour then stated that "that ground of review" had been excluded by s 476(2)(b) of the Act which states that it is not a ground upon which application for review of a "judicially reviewable decision" may be made that the decision involved an exercise of power that was so unreasonable that no reasonable person could have so exercised the power. It does not appear to have been submitted to his Honour that the conduct of the Tribunal in refusing to exercise such a power provided ground for review under s 476(1)(b), (c) or (e) of the Act.

    [64]  Although the reasons provided by his Honour show that, if submitted, such grounds would have been arguable, it does not appear to have been established before his Honour that, at the time of the Tribunal's decision, the means of conducting a sufficient enquiry would have been reasonably available to the Secretary if the Tribunal had requested the Secretary to enquire and report. If such a submission had been made, his Honour may have been prepared to infer from the material before him that the necessary enquiry could have been readily conducted if requested by the Tribunal, but in the absence of such a finding the ground now relied upon could not be said to have been established.

11. This section of the judgment was however, obiter, and the subject of reservations by the other two members of the Full Court. 

12. In the present case it could not be said that there is a source of readily available information, nor that identifiable information (even if not readily available, but reasonably available) could have been determinative in this case.  In the circumstances, the applicant could not satisfy the test as described Lee J in W389/01A, which would be the most generous interpretation of the law on the topic for the applicant.  In the circumstances, I am not satisfied that this establishes a ground for judicial review.

Ground Two

1. Ground 2 relies upon the same factual basis as the first particular of ground 1, relying upon the common law principles of procedural fairness rather than statutory provisions of the scheme setting up the Tribunal’s hearing process.  However, for the same reasons for rejecting ground 1 apply with respect to ground 2.

Ground Three

1. The applicant says that an integer of his claim was not dealt with by the Tribunal.  The applicant points to transcript where the following exchange took place:

   MEMBER: You said to me before that before you left for Australia you refused to serve a couple of times.  Why weren’t you followed up then?  Why would they do it now, 10 years later?  Whey didn’t they look for you and punish you, as you claim, during that time? 

   INTERPRETER: At that time they didn’t do anything probably because I was well known in the community.  I was involved in sport, in karate, and probably it would have taken them long period of time to take some actions, and that’s probably whey they didn’t do anything.  I was well known in the community.  It wasn’t easy to do something or take some actions against me.  They needed probably lots of time to organise something.  I was a well-respected person and many people look after me. 

   MEMBER: Why would anything be different 10 years later?

   INTERPRETER: Are yo asking me why now, after 10 years, it would be different?  Because so many things have happened there. 

   MEMBER: Yes, but if people didn’t bother looking fro you 10 years ago, why is it more important now, 10 years later?

   INTERPRETER: I don’t know if you know about the people who live in Balkan region and their mentality.  It’s very hard there to classify someone as a refugee and you need – there I look like a deserter, like coward, and that’s why they think I ran away, and that’s I’m afraid – I fear to go back.  Also, the people I was serving, I was with them and serving the service, probably they don’t respect me now.  They don’t look at me with the same eyes like they used to.

2. It is only the last statement by the applicant that is relied upon by him, however, it must be viewed in the context of the exchange with the Tribunal member.

3. As pointed out by a counsel for the Minister, the Tribunal specifically referred to the cowardice claim at pages 14 to 15 of the Tribunal Decision saying:

   The applicant’s view, that he would be considered a ‘coward’, it appears, is also fuelled by the applicant’s strong sense that he was not there when there were troubles in Macedonia (2001) and an even stronger sense that he has been a victim of bad advice in Australia where people in similar situations to him obtained Protection Visas and he did not and now has had to have his claims subjected to a different kind of scrutiny.  His adviser also mentioned this.  While the Tribunal can sympathise with the applicant’s views on these matters, it is required to assess his claims in terms of the Convention.  Whether the applicant’s views are justified or not, they do not lead to a real chance of persecution for a Convention reason on return.

4. This appears to me to be a proper answer to this ground for review.

5. I therefore refuse the current applicant.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Riethmuller FM

Deputy Associate:  Averil Tan

Date:  12 July 2007