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MIGRATION - Review of decision of RRT - where applicant does not raise any jurisdictional error but relies on error of fact - where court identifies possible jurisdictional error - whether Tribunal did not consider the applicant as a member of a particular social group - whether wrong findings of fact can constitute jurisdictional error.

SZACG v Minister for Immigration [2003] FMCA 218 (28 May 2003)

SZACG v Minister for Immigration [2003] FMCA 218 (28 May 2003)
Last Updated: 11 June 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZACG v MINISTER FOR IMMIGRATION
[2003] FMCA 218



MIGRATION - Review of decision of RRT - where applicant does not raise any jurisdictional error but relies on error of fact - where court identifies possible jurisdictional error - whether Tribunal did not consider the applicant as a member of a particular social group - whether wrong findings of fact can constitute jurisdictional error.



Applicant NALU of 2002 v Minister for Immigration [2003] FCAFC 31

MIMIA v Yusuf (2001) 180 ALR 1

Waterford v The Commonwealth (1987) 163 CLR 54

Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297 Re Minister for Immigration and Multicultural Affairs; Ex parte Holland [2001] HCA 76

Applicant:
SZACG



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ 1272 of 2002



Delivered on:


28 May 2003



Delivered at:


Sydney



Hearing date:


28 May 2003



Judgment of:


Raphael FM



REPRESENTATION

For the Applicant:


Applicant in person



Counsel for the Respondent:


Mr M Wigney



Solicitors for the Respondent:


Australian Government Solicitor


ORDERS

(1) Application dismissed.

(2) Applicant to pay respondent's costs in the sum of $4,250.00.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ 1272 of 2002

SZACG


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. The applicant is a citizen of Yugoslavia who arrived in Australia on the 11th January 2001 on what has now been established as being a false Belgian passport. On the 25th January 2001 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 18 May 2001 a delegate of the Minister refused to grant a protection visa and on 31 May 2001 the applicant applied for a review of that decision by the Refugee Review Tribunal.

2. The delegate's decision was based upon the belief that the applicant was a Belgian citizen and therefore entitled to protection within that country. The matter came before the Refugee Tribunal for review. The applicant gave oral evidence on the 2nd October 2002 and called a witness. The Tribunal dealt with the claims, which he made in his original application, that his well founded fear of persecution arose out of his Albanian ethnicity and Muslim religion. The Tribunal considered the matter and gave its decision on the 15th October 2002 handing the same down on the 5th November 2002.

3. The applicant, being dissatisfied with the decision of the Tribunal, made an application to this Court in respect of which two grounds were stated. The first ground was:

"1. The applicant is a citizen of Yugoslavia. If he is deported from Australia he will be at risk of suffering persecution within the meaning of the 1951 Convention relating to the status of refugees and the 1967 protocol relating tho the status of refugees.

2. The applicant seeks relief under section 39B of the Judiciary Act 1903 (Cth) on the grounds that the Tribunal:

(a) exceeded jurisdiction in making the decision to affirm the respondent's decision not to grant the applicant a protection visa; and

(b) erred in law in arriving at the decision to affirm the respondent's decision not to grant the applicant a protection visa."

4. In accordance with the usual practice of the Registrar the applicant was required to file and serve any affidavits upon which he intended to rely before the 5th February 2003 and to file and serve written submissions five working days prior to the hearing. The applicant was not asked to file an amended application. The applicant then received some legal assistance through the minister's scheme. No written submissions or affidavits were filed.

5. Between [CB 153] and [158] the Tribunal sets out the applicant's claims to having a well founded fear of persecution for a Convention reason. These consist of some discrimination or persecution that commenced at the age of 16, as a result of which, he left school and did not return. The applicant and his family have had problems with the police, particularly relating to an attempt to enlist him in the Serbian army. He managed to avoid this by paying a bribe. The applicant claimed that in September 2000 police came to his parent's house, shot their guns and threatened to kill his father and put him in jail if no guns were produced by the family. The applicant claimed that this type of threat was made on several occasions and he would go into hiding when that occurred.

6. In November 2000 the applicant and his family fled to Macedonia and he remained in Skopje until the 4th January 2001 when he paid a people smuggler 20,000 Marks to provide him with a false Belgian passport which he used to fly to Sydney via Thailand.

7. One page 157 the Tribunal notes the following:

"The Tribunal asked the applicant how far he lived away from the Kosovo border, to which he replied 40 kilometres. The Tribunal asked the applicant whether in view of this he could not return to the UNMIK and KFOR controlled part of Albanian Kosovo. The applicant claimed that things have changed, and it would be difficult for his mother and father to return to this part of Kosovo because of their mixed marriage. The Tribunal stated that the applicant claimed that he was ethnically Albanian and it was considering his application for a protection visa. The applicant then said in the current circumstances they would kill a person for any reason. Many people had lost their families and the revenge had started. They would be treated like spies. He claims that the Serbs could kill him as he had not joined their army; whereas in Kosovo the Albanians could kill him because he did not join their group and his father because he had worked with the other side."

8. The Tribunal's decision in the applicant's case was based upon its decision to prefer the country information which is set out at some length between [CB 164] and [172] to the evidence provided by the applicant and his witness. The country information utilised by the Tribunal and put to the applicant indicated that it would be safe for him to return either to the Presevo Valley, where ethnic Albanians are the majority of the population, or the UN controlled area of Kosovo itself.

9. A decision of this type which fairly balances the evidence and comes to a conclusion is a decision which is clearly within the jurisdiction of the Tribunal. At the hearing today the applicant did not seek to impugn that decision on the basis of some jurisdictional error but rather to impress upon me the error of fact made by the Tribunal in coming to a decision to prefer the country information to the evidence that he had given. The applicant stated that he did not believe that the Tribunal really appreciated what the situation was like in Kosovo or in the area surrounding it. He said that if things had been really safe there his parents would have returned from Macedonia but they had not done so.

10. These views are perfectly reasonable coming from a native of that area. But it is not within the power of this Court to substitute its views about the situation in Yugoslavia for those of the Tribunal.

11. There was perhaps one matter in which it could have been argued that the Tribunal failed to exercise its jurisdiction. That is whether the Tribunal properly considered the applicant's claim on the basis that he was a member of particular social group, being "children of mixed marriages between Serbians and Albanians in the Kosovo and surrounding region". The Tribunal does not utilise those words, or indeed words anything much like those words, in its reasons for decision but as I have pointed out it certainly considered the situation of the applicant and his parents because of their mixed marriage at [CB 157]. At [CB 171] the Tribunal says this:

"The Tribunal is satisfied that, as an ethnic Yugoslav Albanian albeit from a mixed marriage, he would receive effective protection and would not be at risk of serious harm amounting to persecution for a Convention reason on this or any other basis if he return to the UNMIK administered Kosovo region of Yugoslavia. The option of an ethnic Albanian from the Presevo Valley being able to return to UNMIK administered Kosovo is also specifically confirmed by recent independent country information."

12. In Applicant NALU of 2002 v Minister for Immigration [2003] FCAFC 31 the Full Bench of the Federal Court said at [13]:

" So far as the claim for jurisdictional error is concerned, such a ground must now be considered in the light of the reasoning of the High Court in Plaintiff S157 v The Commonwealth (Supra). The effect of the decision of the High Court is that s.474 of the Act does not exclude consideration by the court of decisions which involve a failure to exercise jurisdiction or which involve an excess of jurisdiction conferred by the Act, as such decisions are not "decisions made under [the] Act; for the purposes of s.474. Put shortly, s.474 does not apply to decisions which involve jurisdictional error. Whatever be the scope or extent of jurisdictional error: see, for example, Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 325 at 351."

13. In MIMIA v Yusuf (2001) 180 ALR 1 at [82] McHugh, Gummow and Haine JJ explained the nature of jurisdictional error and said:

" What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that effects the exercise of power is to make an error of law. Further, doing so results in the decision maker exceeding the authority or powers given by the relevant statute..."

14. I am satisfied that in this case the Tribunal did give sufficient regard to the applicant's claim of persecution arising from his parents mixed marriage. I accept Mr Wigney's submission that before the Tribunal the claim was faintly put, although it was repeated today. The information contained in the Court Book would seem to me to indicate that the dangers from a mixed marriage were more dangers to the parents rather than the child and were a reason why his family would not return from Macedonia. The fact of the parents non return weighed heavily with the applicant, who did not think that he should go back if they did not because he would have nothing to go back to.

15. Even if the Tribunal made a wrong finding of fact in accepting the evidence before it about the current situation in Kosovo and the surrounding area or about the effect of the amnesty in relation to the applicant's fear of being conscripted or being subject to a penalty for having avoided conscription or induction into the Albanian forces, it was decided as long ago as 1987 in Waterford v The Commonwealth (1987) 163 CLR 54 and affirmed in Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297 at 303 and again by the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Holland [2001] HCA 76 that there is no reviewable error in making a wrong finding of fact.

16. I am unable to accede to the applicant's request for a review of this decision of the Refugee Review Tribunal. I dismiss his application.

I order that the applicant pay the respondent's costs which I assess in the sum of $4,250.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrate Court rules.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
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