FEDERAL COURT OF AUSTRALIA

Hasani v Minister for Immigration & Multicultural Affairs [2000] FCA 1434

MIGRATION – review of decision by Refugee Review Tribunal affirming respondent’s refusal to grant protection visa – Albanian Kosovar – whether Tribunal erred in law in failing to focus on applicant’s individual circumstances – extensive reference to country information – situation in Kosovo radically improved since applicant’s departure – whether Tribunal made any other reviewable error – no reviewable error – application dismissed.

Migration Act 1958 (Cth), s 476

BESNIK HASANI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W 149 OF 1999

CARR J

12 OCTOBER 2000

PERTH

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The applicant pay the respondent’s costs of the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

INTRODUCTION

1                     This is an application for an order of review of a decision of the Refugee Review Tribunal made on 9 November 1999 by which the Tribunal affirmed the decision of a delegate of the respondent not to grant a protection visa to the applicant.  The applicant, who is a citizen of Yugoslavia of Albanian ethnicity previously resident in Kosovo, arrived in Australia by air on 16 July 1999, travelling on a false passport.  On 23 July 1999 the applicant lodged his application for a protection visa with the Department of Immigration and Multicultural Affairs.  On 1 September 1999 a delegate of the Minister refused to grant him a protection visa.  On 7 September 1999 the applicant sought review of the delegate’s decision by the Refugee Review Tribunal.

the applicant’s claims and the Tribunal’s decision

2                     The applicant’s claims to refugee status are summarised and its findings are set out at pp 4-14 of its reasons for decision dated 9 November 1999.  I set out below some edited portions of those pages.  The editing comprises certain deletions.  The deletions include about five pages of extracts from country information reports.

         “CLAIMS AND EVIDENCE

         The applicant's claims are set out in written submissions to the Department, an interview with an officer of the Department, written submissions to the Tribunal and oral evidence given to the Tribunal on Friday, 15 October 1999.

         . . .

The applicant is a twenty eight year old man of Albanian ethnicity from Peje (also known as Pec) in Kosovo.  He claims that he fled his home town on 5 May 1999 as a result of the ethnic cleansing that was occurring and was being led by the Serb forces.  He claims that he fled to Albania.  From there he eventually made his way to Italy and then to Australia via South Africa. He used an Italian passport that was fraudulent.

The applicant claimed that his father joined the Kosovo Liberation Army (KLA).  He does not know of his whereabouts.  He claimed that his father has been killed but his father's body has never been recovered.  The applicant himself however did not join the KLA and believes this will cause him problems if he returns.  He also believes that whoever killed his father could kill him.

On 5 May 1999 he claims that he could not find his family but gathered with some friends and left for the town of Decan on the border.  When he arrived in Albania he lived in a big camp. He heard that his whole village had been destroyed by the Serb forces.  He does not know where the rest of his family is.  He looked for them when he was in the camp in Albania but was not successful in locating them.

The applicant eventually made his way to Australia.  He has a cousin here who provided a letter stating that the applicant is from the part of the family that resided in Kosovo.  His cousin comes from Albania.

In response to information that 800,000 people had returned to Kosovo the applicant stated that he had no family there and his house had been destroyed.  He stated that he cannot imagine life back there.  He stated that no one can prevent the killings.  People are seeking revenge.

The applicant provided articles about objections by Albanians to Russians being involved in the peace keeping force and about anti-Russian protests.  In relation to country information that the Russians in the peace keeping force are not siding with the Serbs, the applicant stated that in history the Russians and Serbs are brothers.  This is why the Albanians were protesting about the Russians.

The applicant's adviser made submissions at the hearing.  He submitted that the Tribunal needed to consider the fluidity of the situation and the real danger on the ground. This included considering difficulties that KFOR had in providing protection and the hundreds of years of animosity between the Russian troops and Albanians.

After the hearing the adviser provided a written submission on 2 November 1999.  It repeats the applicant’s claims in relation to his Albanian ethnicity and his father’s membership of the KLA.  It submits that the applicant also fears persecution from the KLA for reasons of an imputed political opinion because he failed to become an active member.  It also submits that the peacekeeping forces are unable to provide protection for the applicant. 

The submission includes a medical report from Mr Paul Skerritt, Psychiatrist.  It states that the applicant is suffering from Post Traumatic Stress Disorder or from a common mixture of anxiety and depressive symptoms.  The submission also provides press reports about a peacekeeper being killed, a call from the UN High Commissioner for Human Rights of 4 August 1999 calling for an end to violence, two reports of further violence and a report of a Bulgarian UN employee being shot.

FINDINGS AND REASONS

The Tribunal accepts that the applicant is an Albanian from Kosovo.  It accepts that he departed in May 1999 in the context of the upheaval that occurred at that time.  It accepts that his father was involved in the Kosovo Liberation Army, has disappeared and may have been killed.  It also accepts that the applicant was separated from his family at the time of his departure.  However the Tribunal is required to assess the applicant’s claim to refugee status at the time the decision is made (Minister for Immigration and Ethnic Affairs v Singh (1997) 142 ALR 191) and since the applicant’s departure there has been significant change in the situation in the area from which he comes.

In addition to the country information provided by the applicant and his adviser about the current situation in Kosovo, the Tribunal considers the following country information about the current situation relevant.

On 25 June 1999 Reuters Business Briefing produced the following article entitled NATO’s Commander In Kosovo Urges Serbs To Stay:

               [Article not reproduced]

In relation to Albanians returning to Kosovo, UNHCR provided the following information on 4 August 1999 in a document called Kosovo emeregency update as at 4/8/99:

               [Document not reproduced]

On 16 August 1999 Reuters Business Briefing made the following comments about the Serb exodus in an article by Philip Smucker in Pristina headed UN chief threatens KLA over Serb exodus:

               [Article not reproduced]

In relation to the applicant’s claims about the Russian troops in his area, Reuters Business Briefing on 7 September 1999 in an article called Russians shoot three Serb gunmen dead by Kurt Schork states:

               [Article not reproduced]

In an article For embattled Serbs, living with Albanians may mean living apart by Daniel Williams also in Reuters Business Briefing on 18 September 1999 the following appears:

               [Article not reproduced]

The conclusion that can be drawn from this country information is that a large number of Albanians have returned to Kosovo with the assistance of international agencies.  It can also be concluded that the Russians are playing their part in the peace keeping force and are not siding with Serbs.  It can also be concluded that it is now Serbs and Gypsies who are under siege in this area.  As a result of this information the Tribunal does not accept that the applicant is at any risk of persecution on account of his ethnicity from the Russian troops in Kosovo.

It is also apparent that there is still considerable violence in Kosovo.  The articles submitted by the applicant refer to peacekeepers being killed or injured, calls for an end to violence and an article about Albanians heading through a Serb area and a director of Kosovo Express being kidnapped and released by an Italian peace-keeper. The Tribunal has no doubt that instances of violence will continue.  However the evidence above indicates that Albanians have returned on mass to Kosovo and that the peacekeeping force, whether Russian or otherwise, is providing protection.  Whilst it is possible to find instances of Albanians being harmed the preponderance of evidence indicates that it is Serbs and Gypsies who are now at risk in Kosovo.  The High Commissioner for Human Rights in a statement provided by the applicant's adviser refers to Serbs and Roma continuing to suffer grave violations.  In the Tribunal's view, given the presence and size of the peace keeping force and the exodus of Serbs from Kosovo, it is impossible to conclude that the applicant faces a real chance of persecution in Kosovo now as a result of his Albanian ethnicity.

The Tribunal also does not accept that he is at any risk of harm because he did not join the Kosovo Liberation Army.  His father did and it appears may have lost his life.  However the KLA is being disarmed and a role is being sought for it in the new situation.  The Tribunal has seen no evidence that the KLA has any interest in pursuing people who may not have joined whether out of fear of being killed, being opposed to its methods or for any other reason.  The Tribunal is therefore satisfied that the applicant does not face a real chance of persecution because he did not join the KLA or because of any imputed political opinion of support for the Serbians.

The Tribunal also does not accept that whoever killed the applicant's father will come after the applicant seeking retribution.  There is no real evidence as to how the applicant's father died, let alone whether he is dead or not.  If he died during fighting between the Serb forces and the KLA, even if he was well known to the Serbs, the Tribunal would consider it most unlikely that they would know who it was that they killed or that this would lead to the applicant being targeted.  If he was killed in some other way by Serbs then again there is no evidence that such people would be after the applicant for revenge.  As stated above a UN peace keeping force is now present in Kosovo.  It is also apparent that large numbers of Serbs have left Kosovo. Whilst the Tribunal accepts that the situation on the ground is fluid, ninety percent of the Albanian population has returned and Serbs and Gypsies are the ones who at present are facing problems.  The Tribunal is satisfied that the peace keeping force will remain in Albania for some considerable time to come and at least until it is safe for them to leave without the prospect of Albanians facing renewed threats of persecution from the Serb authorities in Belgrade.  In these circumstances the Tribunal is satisfied that there is no real chance that the applicant will face persecution because of his father's involvement in the KLA, his failure to be involved or for any other reason.  The Tribunal is satisfied that there is no real chance that the applicant will face persecution because of his ethnicity, his religion, any political or imputed political opinion or for any other Convention reason.

As far as the applicant's claim that he will be the target of spontaneous revenge killings by Serbs, again the Tribunal notes that a large part of the Serbian population has left, large numbers of Albanians have returned since a peace keeping force arrived and Serbs have become the target of violence.  As a result the Tribunal does not accept that there is any real chance that the applicant will become the target of revenge from Serbs in general.

The Tribunal accepts the contents of the medical report.  It is conceivable that the applicant may have problems with depression and anxiety as a result of his experiences in May 1999 in Kosovo.  However nothing in the report affects the Tribunal's view that the situation that exists now in Kosovo is entirely different from that in May 1999.  There are no doubt many thousands of Albanians from Kosovo who are experiencing similar symptoms.  However whilst the report backs up the applicant's claims that he was traumatised in May 1999 when he left Kosovo, the Tribunal is satisfied that there is no real chance he will face persecution for a Convention reason should he now return there.

Taking all of the applicant's claims into account both individually and cumulatively the Tribunal finds that the applicant does not have a well-founded fear of persecution for a Convention reason.”

3                     From the above it can be seen that the Tribunal accepted that the applicant was an Albanian from Kosovo and that he departed in May 1999 during the upheavals which occurred at that time.  The Tribunal also accepted that the applicant’s father was involved in the Kosovo Liberation Army (“the KLA”), had disappeared and may have been killed and that the applicant was separated from his family at the time of his departure.

4                     It then considered the applicant’s claim to be at risk of persecution on account of his ethnicity.  Specifically, in the light of country information, it rejected his claim that he was at any risk of persecution on account of his Albanian ethnicity from the Russian troops in Kosovo.  Furthermore, the Tribunal found that, given the presence and size of the peace-keeping force and the exodus of Serbs from Kosovo, it was impossible to conclude that the applicant faced a real chance of persecution in Kosovo as a result of his Albanian ethnicity.

5                     The Tribunal then considered the applicant’s claim that he was at risk of harm because he did not join the KLA.  The Tribunal referred to the fact that his father had joined that army and appeared to have lost his life.  The Tribunal noted that the KLA was being disarmed and a role was being sought for it in the new situation in Kosovo.  The Tribunal, for reasons which it gave, stated that it was satisfied that the applicant did not face a real chance of persecution because he did not join the KLA or because of any imputed political opinion of support for the Serbians.

6                     Finally, the Tribunal considered the applicant’s claim that those who killed his father would “come after him”.  For the reasons which appear in the last few paragraphs set out above, the Tribunal expressed its satisfaction that there was no real chance of the applicant facing persecution because of his father’s involvement in the KLA, his (the applicant’s) failure to be involved or for any other reason.

Application for review

7                     There were six grounds of the application.  The sixth ground was added by amendment, with leave, at the hearing.

Ground 1 - Error of Law

8                     The applicant contended that the Tribunal’s decision involved an error of law in that it incorrectly interpreted and construed the relevant legislation or incorrectly applied the law to the facts as found by it.  The applicant’s solicitors filed particulars of the grounds of application.  The particulars in relation to this ground show that the complaint is that the Tribunal had not conducted a proper assessment of the applicant’s case, had failed correctly to apply the test of a well-founded fear of persecution and had failed to speculate upon the chances or possibilities that it might be wrong.  The applicant complained that the Tribunal had not properly considered the specific circumstances of his case, that it had focussed on information which was out of date and that it had failed properly to consider whether there would be effective State protection for the applicant if he were returned to Kosovo.

my reasoning

9                     I do not think that the evidence discloses any error of law on the Tribunal’s part.  In its reasons the Tribunal referred to the criteria for a protection visa and to decisions of the High Court of Australia and this Court which explain what constitutes a refugee.  It is clear that the Tribunal well understood the task in hand.  It can be seen to have understood the “real chance” test and to have applied that test to the facts found by it. 

10                  The Tribunal made extensive reference to country information.  Most of that information was dated within a few months of the Tribunal’s decision.  Some of that information was older, but the Tribunal understood that its task was to assess the situation as at the date of its decision.  It is not true to assert that the Tribunal failed to focus on the applicant’s individual circumstances.  A fair reading of its reasons shows that it did so.  Furthermore, as I have mentioned, the Tribunal accepted virtually all of the applicant’s factual claims.  There was not the slightest degree of hesitation in the Tribunal’s conclusions.  In that situation, in my view, it was not obliged to speculate and ask itself “what if I am wrong?” – see Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 576.

Ground 2 – Decision not Authorised – s 476(1)(c)

11                  The applicant did not provide any particulars of this ground.  It is clearly without merit.  The applicant had applied to the Tribunal for review of the decision refusing his application for a protection visa.  As the respondent submitted, the Tribunal was bound by the provisions of the Migration Act 1958 (Cth) (“the Act”) to review the decision on the merits and make a decision.  It did so.

Ground 3 – No Evidence or Other Material

12                  In his particulars relating to this ground the applicant asserted that there was no evidence or other material from which the Tribunal could reasonably be satisfied that the applicant did not have a well-founded fear of persecution based on race.  He further asserted that the Tribunal had assessed his case in relation to the general situation for Albanian Kosovars rather than the particular circumstances of the applicant.

13                  In my view, it is abundantly clear from the Tribunal’s reasons and from the affidavit evidence of what was before the Tribunal and what took place at the hearing conducted by it, that there was ample evidence to justify the making of the decision.  The applicant seeks, under the heading of a “no evidence” complaint to argue the merits of his claim for refugee status.  That, of course, is a forbidden area so far as this Court is concerned.

Ground 4 – Improper exercise of power for a purpose other than that conferred

14                  No particulars were given of this ground other than to repeat the particulars given for the other grounds and to state that “… implicitly thereby the decision was made in the exercise of a power by the Tribunal for which the power was not conferred”.

15                  This ground is not made out.

Ground 5 – Unreasonableness – exercise of a discretionary power in accordance with a rule or policy without regard to merits

16                  The applicant did not specify any rule or policy in accordance with which he asserted that the Tribunal had made its decision without regard to the merits of his case.  In his particulars, the applicant asserted that the Tribunal had failed properly to assess and pay proper regard to all of the evidence adduced and that, in those circumstances, it was to be inferred that the Tribunal had exercised its discretionary power in accordance with a rule or policy without proper regard to the merits of his case.

17                  A fair reading of the Tribunal’s reasons shows that there is no substance in this ground.

Ground 6 - Failure to comply with procedures required by the Act

18                  In his particulars, the applicant simply repeated the particulars of the grounds referred to above which, so he asserted, showed that “implicitly” the decision involved an error of law in that required procedures were not observed.

19                  On the assumption that the applicant was complaining that the Tribunal had failed to set out its findings on material questions of fact or that it failed to refer to the evidence or other material on which its findings were based, a fair reading of the Tribunal’s reasons shows that it complied with those requirements.  Basically it accepted the applicant’s claims.  It set out its findings on the material questions of fact, it referred to the evidence and material on which it based its findings and, in my view, this ground is not made out.

Conclusion

20                  For the foregoing reasons the application will be dismissed with costs.

Associate:

Dated:              12 October 2000