FEDERAL COURT OF AUSTRALIA

WALK & Anor v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1542

MIGRATION – Refugee Review Tribunal – refusal of protection visa – whether jurisdictional error in Tribunal decision

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth) ss 5, 36(2), 65, 91R, 91R(1)(a), 91R(2)(d)(f), 474

Migration Legislation Amendment Act (No 6) 2001 (Cth)

Convention relating to the Status of Refugees done at Geneva on 28 July 1951

Protocol relating to the Status of Refugees done at New York on 31 January 1967

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 cited

WALK v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

W43 OF 2004

LEE J

8 DECEMBER 2004

PERTH

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicants pay the respondent’s costs.

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

REASONS FOR JUDGMENT

LEE J:

1                     This is an application under s 39B of the Judiciary Act 1903 (Cth) for orders in the nature of prerogative relief in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) that “affirmed” a decision of a delegate of the respondent (“the Minister”) that the applicants not be granted “protection” visas under the Migration Act 1958 (Cth) (“the Act”).

2                     The applicants are husband and wife and former citizens of the former Republic of Yugoslavia.  After dissolution of the Republic and the formation of new national entities the first applicant became a citizen of the Federation of Bosnia and Herzegovina (“Bosnia”) and the second applicant a citizen of the Republic of Serbia and Montenegro (“Serbia”).

3                     The applicants arrived in Australia on 4 November 2000 as the holders of “visitor” visas issued to them in Belgrade, Serbia, on 13 September 2000.  The elder brother of the first applicant is an Australian resident.

4                     On 17 November 2000 the applicants lodged applications for “protection” visas.  On 6 December 2001 the delegate determined that protection visas not be granted to the applicants.  An application for review of that decision was lodged with the Tribunal on 20 December 2001.  The Tribunal conducted a “hearing” for the purpose of that review on 5 January 2004 and made its decision on 14 January 2004.

5                     The first applicant was born in Mostar, Bosnia, in 1961 of Serbian parents.  Between 1976 and 1992 the first applicant resided in Belgrade where he received secondary and tertiary education.  After graduation the first applicant became an actor and drama lecturer in Belgrade.  Between 1976 and 1992 he visited Mostar regularly and stayed with his grandmother in the family home.  Between 1992 and 1995 the first applicant returned to live in Mostar.  In March 1992 Bosnia declared itself an independent State after a referendum of its population supported that course.  Bosnian Serbs boycotted the referendum and began an armed insurrection aimed at partitioning Bosnia on ethnic lines and incorporating            the Serbian controlled area in “a greater Serbia”.  The Croat minority within Bosnia also took up armed resistance.  The Croats and Serbs attacked each other and the Bosnian majority, usually described by its religious adherence as Muslims.  At that time the major elements of the population of Mostar, were said to be, approximately, Croat (54%), Muslim (28%) and Serb (11%).  Mostar was situated within the “Croatian” area of Bosnia.  In 1992 forces from Serbia attacked and occupied Mostar.  In 1993 Croat forces recovered control of Mostar and the first applicant’s home in Mostar was taken over by Croats.

6                     In 1994 the Croats and Muslims reached an accord and combined to resist the Serbs.  In 1995 a peace agreement was executed by all parties in which the constituent parts of Bosnia became two entities of roughly equal size, namely, the Muslim and Croat controlled area of the Federation of Bosnia and Herzegovina and a Serb controlled area within the borders of the Federation known as the Republic of Srpska.

7                     Between 1995 and 1998 the first applicant resided in Belgrade and, it may be assumed, was employed in his profession.  In October 1998 he returned to Mostar to take up employment with the Mostar Theatre.  In January 1999 the first and second applicants were married in Mostar.  In the same month, whilst in the company of the second applicant, the first applicant was approached by Bosnian police officers and asked for his documents.  He was detained for several hours and told by the officers to “go back to Serbia”.  The first applicant claimed that the action of the police was intended to harass him as a Serb.  In March 1999, whilst with the second applicant in a restaurant in Mostar, he was arrested by Bosnian police and taken to a police station where he was held for several hours and “beaten up”.  The first applicant stated that the police told him to take his wife and “leave Mostar for good”. 

8                     The first applicant reported both incidents to the international peacekeeping or stabilization force supervising the implementation of the peace agreement and the return to Bosnia of displaced citizens.

9                     In his application for a “protection” visa the first applicant stated that in May 1999 the applicants had attended the Australian Embassy in Vienna and applied for a “protection” visa and that “all documents relating to our persecution [are] currently in our file at the Embassy in Vienna”.  It does not appear from the papers before the Court that any of those documents was included in the material before the Tribunal.

10                  A Bosnian passport was issued to the first applicant in October 1999.

11                  The first applicant claimed that in November 1999 he received a letter which threatened the applicants that they would be killed if they did not leave Mostar.  The first applicant stated that thereafter the applicants lived in fear of serious harm whilst in Mostar.

12                  In June 2000 the first applicant’s employment with the Mostar Theatre was terminated.  The first applicant claimed that the only reason for the termination was that he was a Serb.  Notwithstanding the cessation of his employment, he was asked to be part of a drama festival in which the Mostar Theatre was to participate at the end of June 2000.

13                  It appears that the applicants left Mostar in June 2000 and returned to Belgrade.  As noted above they obtained “visitor” visas in September and left for Australia in early November.

14                  Under s 65 of the Act, if the Minister is satisfied that, inter alia, the criteria for a visa prescribed by the Act have been satisfied, the Minister is to grant the visa, but if the Minister is not so satisfied the grant of the visa is to be refused.  The only prescribed criterion that is relevant to this proceeding is that set out in s 36(2) of the Act.

15                  At material times, s 36(2) of the Act provided as follows:

‘A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.’

16                  In s 5 of the Act, “Refugees Convention” and “Refugees Protocol” (together referred to hereafter as “the Convention”) are defined respectively as “the Convention relating to the Status of Refugees done at Geneva on 28 July 1951” and “the Protocol relating to the Status of Refugees done at New York on 31 January 1967”.  The term “protection obligations” is not defined in the Act and is not used in the Convention.

17                  The Convention is a treaty pursuant to which the “Contracting States” agree to apply the provisions of the Convention to “refugees”.  Sub-Article 1(A) of the Convention provides the following definition of “refugee”:

‘For the purposes of the present Convention, the term ‘refugee’ shall apply to any person who:…(2)…owing to 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;…’

18                  Exceptions to the Convention definition of refugee, or circumstances in which the definition ceases to apply, are set out in, inter alia, sub-Articles 1(C) (D), (E) and (F).  It was not contended that any of the foregoing sub-Articles applied to the applicant. 

19                  Australia has undertaken the obligations imposed on Contracting States by the Convention.  Numerous obligations in respect of refugees are set out in the Convention, including an undertaking by a Contracting State not to discriminate against a refugee, and to offer a refugee some of the opportunities available to a national of that State.  All such obligations may come within a broad meaning of “protection obligations” but in s 36(2) the term may be taken to refer to the particular obligations Australia has accepted not to penalize, or restrict the movement of, a refugee who has entered Australia without authority (having come directly from a territory where the life or freedom of that person was threatened for a Convention reason) and not to expel or return a refugee to such a territory.

20                  Under s 91R of the Act, which was introduced by the Migration Legislation Amendment Act (No 6) 2001 (Cth)(“the Amending Act”) and came into force on 1 October  2001, it is provided as follows:

‘(1)    For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:

(a)  that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and

(b)   the persecution involves serious harm to the person; and

(c)   the persecution involves systematic and discriminatory conduct.

(2)     Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)  a threat to the person’s life or liberty;

(b)  significant physical harassment of the person;

(c)   significant physical ill-treatment of the person;

(d)  significant economic hardship that threatens the person’s capacity to subsist;

(e)   denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)   denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(3)     For the purposes of the application of this Act and the regulations to a particular person:

(a)     in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;

disregard any conduct engaged in by the person in Australia unless:

(b)     the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.’ 

21                  By reason of the transitional provisions set out in Item 7 of Schedule 1 of the Amending Act, s 91R applied to the application for a “protection” visa lodged by the first applicant. 

22                  Whether the terms of s 91R can be said to be consistent with the obligations Australia has undertaken as a Contracting State under the Convention is unnecessary to consider.

23                  On the hearing of the application the applicants were represented by counsel who submitted that the reasons for decision provided by the Tribunal demonstrated that the Tribunal had fallen into jurisdictional error and that the decision of the Tribunal was not a “privative clause decision” protected by s 474 of the Act.  (See:  Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476). 

24                  Counsel for the Minister acknowledged that the reasons for decision provided by the Tribunal revealed errors on the part of the Tribunal but not jurisdictional error.

25                  In its reasons for decision the Tribunal accepted that the first applicant had been detained and assaulted by Bosnian police as claimed by him.  The Tribunal stated, somewhat elliptically, that those events “were in fact part and parcel of the situation in Bosnia which to some extent still exists”. 

26                  The Tribunal stated that it doubted that the applicant received a threatening letter in 1999 because the first applicant had remained in Bosnia for at least a year thereafter.  In fact the material before the Tribunal showed that the applicant left Mostar in June 2000 when his employment was terminated and not “at the end of 2000” as stated by the Tribunal.  The Tribunal also misunderstood the material before it when it stated in its reasons that the first applicant had been invited “some months” after termination of his employment to tour with the Mostar Theatre group.  The Tribunal thought that such a circumstance indicated that there was a cordial relationship between the parties and that it was unlikely that the first applicant’s services had been terminated because he was a Serb.  In fact the invitation appears to have been made at about the time of termination.

27                  Although it did not make an explicit finding in such terms the Tribunal appeared to be satisfied that the first applicant could enter and reside in Serbia with the second applicant and, further, that after a sufficient period of such residence he could apply for citizenship of that country if prepared to renounce his Bosnian citizenship, a step the first applicant was not prepared to take. 

28                  Counsel for the applicant submitted that the Tribunal fell into jurisdictional error by failing to consider the correct question when it purported to determine that the first applicant did not have a well-founded fear that he would suffer persecution if returned to Bosnia. 

29                  As developed by counsel the submission appeared to be that the Tribunal, by reason of its misunderstanding of relevant facts, failed to duly consider events of a persecutory nature suffered by the first applicant in Bosnia, namely, detention on two occasions by Bosnian police - suffering severe assault on the second occasion; termination of his employment and eviction from his house; and the threat of death if he and the second applicant did not leave Bosnia, in determining whether it was satisfied that the first applicant had a well-founded fear of persecution if returned to Bosnia.  Counsel also submitted that the Tribunal should not have dismissed the first applicant’s claim that his safety was at risk in Bosnia by reason of the leading role he took as an actor in a film involving an historical depiction of the Ottoman occupation of Bosnia and in which the first actor played the part of a Turk.

30                  Perusal of the reasons of the Tribunal shows that in assessing whether the first applicant had a well-founded fear of persecution the Tribunal took account of all of the foregoing matters relating to past events and considered “country information” that reported on the current circumstances in Bosnia.  The Tribunal then determined whether after having regard to those matters it was satisfied that there was a real chance that the first applicant may suffer persecution in future if returned to Bosnia.  That was the correct issue to be determined by the Tribunal.

31                  The Tribunal accepted that the first applicant was detained and assaulted by Bosnian police as claimed and that he had reported those incidents to the international peace-keeping or stabilization force exercising control in Bosnia.  However, the Tribunal stated that it was not satisfied that, as required by s 91R(1)(a), the Serbian ethnicity of the first applicant was the essential and significant reason for the harm suffered.  The Tribunal did not suggest any other reason for the conduct of the Bosnian police, other than to say that there was no indication that the events took place for other than “clarification of identity”.  The Tribunal supported its stated lack of satisfaction by noting that the first applicant “was able to move between Serbia and Bosnia with apparent ease for many years, irrespective of the situation on the ground between those two countries”. 

32                  On one view the foregoing may be thought to be a tenuous basis on which to attach no persecutory significance to the police conduct in January and March 1999 given the history of inter-ethnic hostilities in Bosnia and that the “country information” referred to by the Tribunal stated that Bosnian police commonly failed to act on complaints of police brutality and that punishments were mild and often done only under pressure from the international peace-keeping or stabilization force or other international monitors.  That material also stated that there were many victims of police abuse who were reluctant to file complaints for fear of retribution, and that the circumstance was of sufficient seriousness to warrant United Nations intervention to implement a programme to attempt to correct it.  However, it cannot be said that the foregoing conclusion was not open to the Tribunal on the material before it. 

33                  With regard to the termination of the first applicant’s employment the Tribunal said it was not satisfied that that circumstance was an act of discrimination against the first applicant as a Serb.  The Tribunal did not suggest that any other reason for dismissal was apparent on the material.  However, even if the Tribunal had been satisfied that the first applicant had been dismissed for reason of race, s 91R(2)(d)(f) of the Act required the Tribunal to be satisfied also that the persecutory act had a consequence of significant economic hardship, or denial of capacity to earn a livelihood of any kind, that threatened the first applicant’s capacity to subsist.  It was unlikely that the Tribunal could have been so satisfied on the material available.

34                  In respect of the death threat claimed to have been received in November 1999 the Tribunal stated that because the applicants had “delayed” until the end of 2000 their departure from Bosnia after the incidents with the Bosnian police in January and March 1999, that “[led] the Tribunal to doubt that the applicant ever received a threatening letter addressed to him at the theatre in November 1999”.  The Tribunal also noted that “for the duration of the year 2000 nothing of note happened” to the first applicant.  As stated earlier the Tribunal was mistaken in its belief that the applicants remained in Bosnia until the end of 2000. 

35                  The Tribunal appears to have reasoned that if, as claimed by the first applicant, the police conduct in January and March 1999 was directed at the first applicant because he was a Serb the applicants would have left Bosnia forthwith, and that because they did not do so, it was to be inferred that it was unlikely that any other Bosnian bearing hostility to Serbs would have been minded to threaten the applicants with death whilst they remained in Mostar.  The logic in that reasoning is not patent but it may be that the Tribunal sought to convey its conclusion that if the applicants had received such a threat it would have been expected that they would have removed themselves from the risk of harm by leaving Mostar forthwith.  The fact that they did not caused the Tribunal to conclude that the threat, if received, had not been taken seriously.  Such a conclusion may not have been obvious, or the preferred conclusion, on the material to be considered but it was open to the Tribunal.

36                  With regard to the claim that the first applicant was at risk of harm in Bosnia from members of the Bosnian community by reason of his starring role in a well-known film the Tribunal reached a firm conclusion that it was “far-fetched” that the first applicant could be at risk of persecution because of an imputed political opinion said to arise out of identification of the first applicant with the character he had portrayed in the film.  That conclusion was open to the Tribunal.

37                  All of the foregoing findings of fact were open to the Tribunal on the material before it, although some may have had a more fragile foundation than others  Furthermore, some may have been findings that the Tribunal was bound to make by reason of the terms of s 91R of the Act.  Having addressed the correct question, the finding by the Tribunal that it was not satisfied that the first applicant had a well-founded fear of persecution became a finding of fact made within jurisdiction.

38                  It follows that the first applicant has not demonstrated that the Tribunal fell into jurisdictional error of the type described in Plaintiff 157/2002.  Accordingly, there is no jurisdiction this Court may exercise to engage in judicial review of the Tribunal’s decision.  The application for orders in the nature of prerogative relief must fail and the application be dismissed with costs. 

39                  The second applicant made application for a protection visa on her own account in addition to being included as a family member in the application made by the first applicant.

40                  The Tribunal found that the second applicant had no fear of persecution in her country of nationality, Serbia and Montenegro, and, therefore, could not establish entitlement to a “protection” visa.  That decision of the Tribunal could not be contested.

Associate:

Dated:              8 December 2004