FEDERAL COURT OF AUSTRALIA

Kesic v Minister for Immigration and Multicultural Affairs [2001] FCA 1216

Migration Act 1958 (Cth)

MILAN KESIC v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 233 of 2001

SPENDER, GRAY and BRANSON JJ

SYDNEY

14 AUGUST 2001

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The appellant pay the costs of the respondent.

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

REASONS FOR JUDGMENT

THE COURT

INTRODUCTION

1                     This is an appeal from a decision of Sackville J of 27 February 2001.  His Honour dismissed an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”).  The Tribunal had on 16 November 2000 affirmed a decision of a delegate of the Minister not to grant the appellant (“Mr Kesic”) a protection visa.

2                     A criterion for the grant of a protection visa is that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (together referred to as “the Refugees Convention”).  Australia will have protection obligations under the Refugees Convention to Mr Kesic if he is 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, is unwilling to avail himself of the protection of that country….”

HISTORY OF APPLICATION FOR A PROTECTION VISA

3                     In his application for a protection visa, which he completed with the assistance of a migration agent, Mr Kesic answered the question “Why did you leave that country [ie Serbia (Yugoslavia)]?” as follows:

“I left the country because of political and war reasons, the country has fallen apart, no jobs have led to robberies theft and hunger in the country.”

In response to the question “What do you fear may happen to you if you go back to that country?”, he responded:

“If I go back I fear the most that I don’t know where to go.  My home has been burnt down.  My belongings do not exist.”

Other answers given by Mr Kesic when completing his application for a protection visa demonstrate his concern about the breakdown of law and order in his home country and the unwillingness or inability of the government to protect or assist the people of that country.

4                     Not surprisingly in the circumstances, Mr Kesic’s application for a protection visa was refused by a delegate of the Minister.  The delegate did not consider that Mr Kesic’s claims established any nexus between what he fears and his civil or political status so as to make him a person to whom Australia has protection obligations under the Refugees Convention.

5                     Mr Kesic sought review of the decision of the delegate of the Minister by the Tribunal.  At this time Mr Kesic was represented by a firm of solicitors.  His solicitors wrote to the Tribunal and advised as follows:

“Our client has directly been involved with the son of the Yugoslav former president Slobodan Milosevic.  As a stand-over man for Marko Milosevic he has committed many deeds such as intimidating and physically bashing people up.

Although, this may be reviewed [sic] as a pure criminal activity, we would like to emphasis [sic] that our clients [sic] involvement had the full knowledge and consent of the authorities, therefore all of his actions were done in a political context.

Another important element in our clients [sic] case is that he was called up to fight as a reservist in Kosovo.

Our clients [sic] duties were to load dead Kosovars onto trucks and to ethnically clense [sic] Kosovo of Kosovars.

As explained by out [sic] client, he could not take the situation any longer and he abandoned his unit after witnessing the horrors of the Serbian war in Kosovo.

… should he return he will be immediately subject to imprisonment for abandoning his unit.”

6                     The Tribunal noted that Mr Kesic’s claim to be entitled to a protection visa was dependent on his contention that he fears persecution in Serbia for reasons of his imputed political opinion – imputed to him by reason of his having worked with Marko Milosevic.  It noted that he also feared imprisonment for having abandoned his military duties during the Kosovo conflict.

7                     The Tribunal in its written reasons for decision recorded that it accepted “the facts of the appellant’s story as he has told them.”  However, it found that he had failed to establish any Convention nexus for the harm that he has suffered or fears in the future.  It concluded that the harm that Mr Kesic fears in the future because of his past association with Marko Milosevic would be in response to his own past conduct and not by reason of a political or ideological view that might be imputed to him.  The Tribunal further noted in this regard the swearing in of a new President of Yugoslavia whose government had signalled a willingness to conform to international laws in relation to the observance of human rights.  In respect of Mr Kesic’s fears arising out of his desertion from the army, the Tribunal noted that he did not claim to be a conscientious objector.  The Tribunal was satisfied that the current Yugoslav government was committed to the rule of law so that, in the event (which the Tribunal regarded as “remote”) that Mr Kesic was charged with desertion, he would receive a fair trial pursuant to a law of general application enforced in a non-discriminatory fashion.

8                     Like the Minister’s delegate, the Tribunal was not satisfied that Mr Kesic is a person to whom Australia has protection obligations under the Refugees Convention.

REASONS OF PRIMARY JUDGE

9                     Mr Kesic’s application to this Court for judicial review of the decision of the Tribunal was filed for him by a firm of solicitors, albeit a different firm from that which had assisted him before the Tribunal.  The only ground of review relied upon was a ground provided by s 476(1)(e) of the Migration Act 1958 (Cth) (“the Act”), namely that the decision of the Tribunal involved an error of law being an error involving the incorrect application of the law to the facts as found.  The application indicated that Mr Kesic was aggrieved because -

“1.       The RRT failed to consider that the police and/or the SPS may have been motivated by persecutory reasons in respect of the summons for military service served upon the applicant.

  2.       The RRT failed to consider that the applicant has a well-founded fear of persecution by reason of his membership of a social group being a group comprising persons associated with the SPS and the Milosevic regime.”

Mr Kesic was represented by counsel before the learned primary judge.

10                  Sackville J, in dismissing the application for judicial review, noted that the Tribunal found that the service on Mr Kesic of the summons for military service was not unlawful and that there was nothing to suggest that the law concerning military service was itself persecutory or applied to Mr Kesic in a discriminatory way.  His Honour considered that this finding of the Tribunal clearly implied that the Tribunal considered that the conscription of the appellant was not by reason of his membership of the SPS (the political party of former President Milosevic) or his association with Marko Milosevic.  His Honour pointed out that it was hardly surprising that the Tribunal had reached the conclusion that it did as Mr Kesic had not suggested to the Tribunal that the reason, or one of the reasons, for his conscription was his imputed political opinion or his association with Marko Milosevic.

11                  On the issue of whether the Tribunal erred in failing to consider whether Mr Kesic has a well-founded fear of persecution by reason of his membership of “a particular social group”, Sackville J was not satisfied that either of the two suggested groups relied upon was capable of constituting a “particular social group” for the purposes of the Refugees Convention.  His Honour referred to the criteria for “a particular social group” identified in Minister for Immigration and Multicultural Affairs v Zamora  (1998) 85 FCR 458 at 464 (FC).  His Honour noted that reliance was ultimately only placed on a group defined as “persons who were known by the police to have been employees of Marko Milosevic”.  As to the group so defined, his Honour observed that Mr Kesic’s counsel could not point to any findings by the Tribunal, or any material before it, that would have supported the factual findings necessary to establish that Mr Kesic was a member of a particular social group comprising persons known by the police to have been employees of Marko Milosevic.  His Honour also drew attention to the finding of the Tribunal that if Mr Kesic has a fear of harm, it is a fear of harm which would flow from his own conduct and not from his membership of a group comprising former employees of Marko Milosevic.

12                  As is mentioned above, Sackville J dismissed Mr Kesic’s application to the Court.

APPEAL TO FULL FEDERAL COURT

13                  It appears that Mr Kesic did not have legal assistance in preparing his notice of appeal to the Full Court.  The only ground set out in his notice of appeal is that:

“The Judge didn’t consider all of the issues submitted.”

CONSIDERATION

14                  Mr Kesic has provided the Court with a written submission that makes it plain that Mr Kesic does not appreciate the nature of the jurisdiction exercised by a judge of the Court on an application for judicial review of a decision of the Tribunal, and further does not appreciate the role of the Full Court when hearing an appeal from a decision of a judge of the Court.

15                  Mr Kesic’s written submission involves a careful analysis of the reasons for decision of the Tribunal and a re-agitation of his claim to be entitled to a protection visa.  It appears that Mr Kesic’s complaint to this Court is that Sackville J did not consider on the merits his claim to be entitled to a protection visa.  Sackville J had no jurisdiction to consider the merits of Mr Kesic’s claim to be entitled to a protection visa.  His Honour’s jurisdiction was limited to reviewing the decision of the Tribunal on the ground upon which the application for judicial review was made (see Division 2 of Part 8 of the Act).  His Honour did conduct this review.  Within the proper scope of the review, his Honour did consider with care all of the issues raised by the application before him.

16                  The role of this Court is to determine whether the decision of the primary judge is affected by error.  This Court, like the primary judge, lacks the jurisdiction to consider the merits of Mr Kesic’s claim to be entitled to a protection visa.  In our view it is plain that the decision of Sackville J is not affected by error.  It was plainly the correct decision on the application before his Honour.

17                  The appeal must be dismissed with costs.

Associate:

Dated:                                           31 August 2001