Trpeski v Minister for Immigration & Multicultural Affairs [2000] FCA 841

FEDERAL COURT OF AUSTRALIA Trpeski v Minister for Immigration & Multicultural Affairs [2000] FCA 841 VLADIMIR TRPESKI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 135 OF 2000 MANSFIELD J 6 JUNE 2000 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 135 OF 2000

BETWEEN: VLADIMIR TRPESKI

APPLICANT

AND: MINISTER FOR IMMIGRATION AND

MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: MANSFIELD J

DATE OF ORDER: 6 JUNE 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay to the respondent costs of the application to be taxed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 135 OF 2000

BETWEEN: VLADIMIR TRPESKI

APPLICANT

AND: MINISTER FOR IMMIGRATION AND

MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: MANSFIELD J

DATE: 6 JUNE 2000

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicant is now twenty-eight. He is a citizen of Macedonia. He came to Australia in late 1998 with his wife who was pregnant to visit her family and members of his family. They have a son, who was born in Melbourne in January 1999. The applicant is a qualified electrotechnical engineer, and was employed in Macedonia as a senior staff member of a company between April 1994 and November 1998. He worked carrying out machine maintenance. 2 Upon arrival in Australia, the applicant applied for a protection visa under the Migration Act 1958 (Cth) ("the Act"). It is a criterion for the grant of that visa that the Minister or his delegate, and on review the Tribunal, be satisfied that he is a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol (using those terms as they are defined in the Act) ("the Convention"). 3 The application for the visa was rejected by a delegate of the respondent on 8 June 1999. The applicant sought review of that decision by the Refugee Review Tribunal ("the Tribunal"). On 27 January 2000, the Tribunal made its decision on that application for review. It affirmed the decision of the delegate of the respondent not to grant to the applicant a protection visa. 4 This is an application for review of that decision. It is not an application which involves a review of the decision of the Tribunal on the merits. The Court's power upon the review is limited to reviewing the Tribunal's decision on one or more of the grounds specified in s 476(1) of the Act. 5 A number of the claims made by the applicant were accepted by the Tribunal. It found that he had been conscripted into the Yugoslav army, the JNA, in 1990 and was sent to serve in the war in Croatia. Part of the area where he served was at a place where the conflict involved what became known as "ethnic cleansing". He witnessed some dreadful killings, including those of persons close to him. The Tribunal accepted that the applicant was traumatised because of scenes he witnessed as a conscript. It also accepted his claim that he had then deserted from the army, but was re-captured by his own side. He was sent home to Macedonia. 6 The Tribunal further found that the applicant was then sent to be examined medically and that he was diagnosed as having "anxious sub-depressive reactions conditioned by the surroundings" brought on by his experiences during his military service. That medical report recommended that he was unable to serve in the Yugoslav conflict for a period of one year from August 1991. There was an issue as to whether the applicant, upon being captured after his desertion, was taken before a military court and court martialled. I will refer to the Tribunal's reasons in that respect shortly. 7 As the Tribunal found, the component republics of Yugoslavia broke up, and Macedonia became independent on 17 September 1991. Consequently it found that the applicant is under no further obligation to the Yugoslav army, the JNA, and that the present Yugoslavia has no power over the future of the applicant. 8 The Tribunal then addressed the applicant's position in Macedonia. It was satisfied that the Macedonian government has accepted the period of service by the applicant in the JNA as satisfying his mandatory full-time military service for Macedonia. That finding was based upon a certificate from the Ministry of Defence of Macedonia to that effect, issued on 3 November 1999. I mention the source of that finding in particular because it was one of the documents which, the applicant submitted, had not been considered by the Tribunal in addressing his claims. That submission must clearly be rejected. The Tribunal found and I quote: "… the Tribunal is satisfied that the Macedonian government has certified that the Applicant has discharged his national service obligations except for "reporting when necessary to the Macedonian Army for military exercises and other related activities." That is, the applicant has obligations to be on the rolls as a reservist."

9 Consequently, the Tribunal focused upon the applicant's ongoing obligations to Macedonia as a citizen of that country. One such obligation, it found, is to serve a period of mandatory military service (which has been satisfied, as noted) and to stay on the military rolls as a reservist, taking part in military training exercises up to a week at a time as required and perhaps as often as once a year. 10 The Tribunal identified, and then addressed, the applicant's claims in relation to those ongoing obligations in its reasons. He claimed that after his desertion he was taken before a military court and interrogated. He said in his statement that "All my documents were taken away". He said he has since lived in fear that something will happen to him and his family. The Tribunal rejected the claim that the authorities had taken away all his documents or that he was an ongoing object of suspicion. It made observations about the material which the Tribunal had been provided with by the applicant, and his manner of giving evidence. It noted his ability to obtain a passport, and to enter and leave Macedonia without incident. It noted that he did not claim to have been visited by the authorities in Macedonia at his home or at his place of work, and that he had remained at the same address and at the same place of work for many years. 11 One part of that finding, in particular, was attacked by the applicant. That is the Tribunal's finding that he claimed that the authorities took away all his documents. In his submission, he contended that that finding did not accurately represent what he had said to the Tribunal, because he sought to convey that it was the documents concerning his service in the Yugoslav army which had been taken away rather than all his documents. To make out that ground, it is necessary to satisfy the requirements of s 476(1)(g) and s 476(4)(b) of the Act. I do not think that that finding represents a particular fact as that term is used in s 476(4)(b) of the Act: see Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 at 221-222 ("Curragh"). Even if it did so qualify, it is not shown that that particular fact did not exist, as the Tribunal has accurately taken its reference to the applicant's evidence from a written statement provided by him in support of his application for review to the Tribunal. The applicant did not otherwise attack any particular aspect of the Tribunal's findings in relation to that particular claim. 12 The main feature of the applicant's claim to the Tribunal was that, as a result of his service in Yugoslavia, he had suffered significant psychological damage which one medical practitioner had diagnosed as post traumatic stress disorder and which produced ongoing symptoms of fatigue, anxiety and depression. It is implicit, if not explicit, in that medical report, and in the Tribunal's findings, that if the applicant were to return to a war or conflict situation, he would be unable to cope and his symptoms would be dramatically worsened. The applicant contended, and the respondent accepted, that it was also part of his claim to the Tribunal that he was a conscientious objector. In his initial claim for the protection visa, he clearly expressed the fear that he would be returned to the army in a role as a combatant and he said, "I do not want to be part of any war. I do not want to kill nor do I want to get killed due to this ... The country [Macedonia] will not protect me and I don't know what will happen to me or my life." 13 On this application, the applicant drew attention to a letter from Amnesty International Australia dated 17 November 1999, provided to the Tribunal, referring to his claim. It records the information provided by the applicant to Amnesty International that he is a conscientious objector. Appropriately, it did not itself make the claim that he had that status. It did, however, add what it understood to be the consequences of him returning to Macedonia and its submission to the Tribunal that it "considers all imprisoned conscientious objectors to be prisoners of conscience and therefore are entitled to protection". 14 Before referring to the Tribunal's reasons in relation to those claims concerning his mental health as a result of his war service and his claim to be a conscientious objector, I note that the applicant submitted that the Tribunal had erred by not having proper regard to that letter from Amnesty International Australia. The only ground of review identified in respect of that submission was s 476(1)(g). It is not shown that the Tribunal misapprehended the terms of that letter, or that it attributed to Amnesty International Australia a view which it did not express. Its reasons record at some length the terms of that letter. I am not satisfied, therefore, that the Tribunal did not have regard to that letter. It explicitly said that it did so. The applicant has not made out any failure by the Tribunal, under s 476(1)(g) and (4)(b) in relation to its consideration of that letter. 15 The Tribunal then addressed the relevant questions to determine whether the applicant was a refugee within the meaning of Article 1A(2) of the Convention. It correctly asked whether the applicant had a fear of harm or damage if he were to be returned to Macedonia. It asked whether that harm which he feared may constitute persecution, as that term is used in the Convention. It asked whether, if there was a fear of persecution by the applicant, that fear was for a Convention reason. That is, it asked whether his fear of being persecuted was for reasons of race, religion, nationality, membership of a particular social group or political opinion. Finally, it asked whether that fear was well founded, in the sense in which that expression has been explained in Chen Yee Kin v Minister for Immigration and Ethnic Affairs (1969) 169 CLR 379 and Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559. 16 The applicant submitted that the Tribunal had erred in law in its consideration of his claim because he contended that he fell within the definition of a refugee under the Convention if it were found that he had a greater than 50 per cent fear of being persecuted if he were returned to Macedonia. The decisions of the High Court to which I have referred indicate that that submission must be rejected. 17 The existence of a fear of persecution is a matter of subjective feeling and exists as a matter of fact. The Tribunal did find that the applicant had such a fear, because it accepted that he had a medical condition induced by his war time experience in 1991. It did not reject his evidence that he had such an ongoing fear. Nor did it reject the medical evidence much more recently obtained as to the nature of his condition. The High Court cases to which I have referred indicate, however, that the additional element that the fear must be well founded involves an objective assessment. The Tribunal described it as a test involving the following:

"A person has a "well founded" fear of persecution under the Convention if they have genuine fear founded upon a 'real chance' of persecution for a Convention stipulated reason. A fear is well founded where there is a real substantial basis for it but not if it is merely assumed or if it is mere speculation. A 'real chance' is one that is not remote or insubstantial or a far fetched possibility. A person can have a well founded fear of persecution even though the possibility of the persecution occurring is well below 50 percent."

18 In my judgment, that test applied by the Tribunal is in accordance with the High Court decisions to which I have referred. The Tribunal has not been shown in that respect to have fallen into error. 19 The Tribunal, however, was not satisfied that the applicant's fear involved persecution for a Convention reason, or that his fear was well-founded. It positively rejected his claim to be a conscientious objector. It said: "Rather, the Tribunal is satisfied that the applicant has become traumatised by being present at a particularly unsavoury time in the history of warfare. He has a medical problem rather than a philosophical stance."

20 In relation to that medical problem, the Tribunal noted that he had been required by the Macedonian authorities to report in 1994 but he had failed to attend the military exercise to which he was consigned, and again in October 1997 he again failed to attend, and further on 3 November 1999 whilst he was in Australia he had been notified of a time for him to attend for reservist training, and again he did not attend. Each failure has not resulted in any consequences. 21 The Tribunal then considered the attitude of the Macedonian authorities to the applicant. It was satisfied that they had not acted adversely towards the applicant in relation to his ongoing military obligations as a reservist. It said:

"However, there is no evidence that the Macedonian army would not react suitably to this medical problem if it were given a chance. If the Applicant reported for a training exercise as he is required, it would soon become apparent if he were unable to hold a gun. In that case, there is no reason to suppose that the army would not send him for psychological assessment and either exempt him from further service as medically unfit or find a civilian alternative for him to undertake. … If the Macedonian Army were to insist that the applicant report for a training exercise even if he told them in advance that he could not hold a gun, the Tribunal is satisfied that such an insistence in itself would not constitute harm of a type or severity that could be called persecution. … There is no reason to suppose that being a reservist in the Macedonian army will entail any significant obligations within the reasonably foreseeable future beyond attending training exercises for a few days at a time on odd occasions. … Based on their past behaviour, there is no reason to assume that they would not treat the applicant correctly if he were found to be unable to fulfil his military reservist obligations because of his psychological condition."

22 Consequently, the Tribunal was satisfied that the chance of the applicant suffering harm in the reasonably foreseeable future in Macedonian was remote and so was not satisfied that any fear of persecution for a Convention reason was well founded. 23 The applicant identified his grounds of review under the Act in relation to those findings of the Tribunal as being based upon s 476(1)(g) and s 476(4)(a) and (b), s 476(1)(e) and s 476(1)(f) of the Act. 24 The ground available under s 476(1)(f) is that the decision was induced or affected by fraud or by actual bias. No submission was directed to that ground of review. No material was identified upon which that ground of view could be made out. It is rejected. 25 Section 476(1)(e) involves the applicant establishing that the Tribunal's decision was infected by error of law of the type to which that provision refers. I have already found that the Tribunal did not misdirect itself in law as to the elements necessary to be satisfied to determine that the applicant was a refugee. The applicant appeared in person on this application with the assistance of an interpreter and I endeavoured to ensure that such matters as he wished to put on the application were fully explored. It is possible that he alleged a further error of law in the way in which the Tribunal addressed his claim to be a conscientious objector, although that is not by all means clear. He referred to the Amnesty International Australia's letter of 17 November 1999 which contained a passage from the United Nations High Commissioner for Refugees Handbook on Procedures and the Criteria for determining Refugee Status under the Convention (chapter 5, par 170) to the following effect: "Cases where the necessity to perform military service may the sole ground for a claim to refugee status, ie when a person can show that the performance of military service would have required his participation in miliary action contrary to his genuine political, religious or moral convictions, or to valid reasons of conscience."

26 He submitted that that represented the law in relation to conscientious objection and that the Tribunal was in error in not approaching his claim on that basis.

27 I do not consider that his claim in that regard, if I have correctly understood it, has been made out. In the first place, the Tribunal rejected as a fact his claim that he was a conscientious objector, in the sense that he was opposed to war by reason of religious or political conviction or some other Convention reason. It found, as I have noted, that his attitude was dictated by his medical problem rather than by any philosophical stance. The Tribunal is not shown to have been wrong in the approach it took to its consideration of the evidence before it so as to disclose a reviewable error of law under s 476(1)(e) of the Act. Recent decisions in this Court, and most recently in Minister for Immigration & Multicultural Affairs v Shaibo [2000] FCA 600, have established that a well founded fear of conscription into armed forces, even if resisted on the grounds of conscience, is not, at least ordinarily, a well founded fear of persecution for the purposes of the Convention: Murillo-Nunez v Minister for Immigration and Ethnic Affairs (1995) 63 FCR 150; Timic v Minister for Immigration and Multicultural Affairs [1998] FCA 1750 ("Timic"); Mijoljevic v Minister for Immigration and Multicultural Affairs [1999] FCA 834; and Mehenni v Minister for Immigration and Multicultural Affairs (1999) 164 ALR 192 ("Mehenni"). There is nothing about the applicant's particular circumstances which, in my view, takes his claim outside that line of authority.

28 In Mehenni, there is an extensive quote from the UNHCR Handbook, including that passage referred to in the Amnesty International Letter. Lehane J, at 199 - 200 (pars 19 - 22), put that passage into context. His Honour emphasised the need for the well founded fear of being persecuted being for reasons of race, religion, nationality, membership of a particular social group or political opinion before a person can satisfy the respondent (or on review the Tribunal) that that person is a refugee. In Timic Einfeld J specifically addressed the position of what his Honour called "conscripts/reservists" consistent with those earlier decisions. 29 In my judgment, the applicant has not shown that the Tribunal was in error in finding that the applicant's fear of being involved in further military service (the consequences of which at present I assume would be of sufficient gravity to constitute persecution) is not fear of persecution for a Convention reason or for the purposes of the Convention. The applicant's fear must be tied to one of the Convention reasons. It was open to the Tribunal in the present matter not to be satisfied of that connection. That is not to say that a conscientious objector may not, in appropriate circumstances, be a refugee for the purposes of the Convention. But the Tribunal has made findings in relation to this applicant in his particular circumstances and on the material before it which are not shown to involve any error of law. In reaching that decision, the Tribunal did not reject the applicant's claim as to the nature of his fears which he also described vividly in the course of his submissions upon this application. 30 The Tribunal also addressed, as I have noted, the question of what would happen to the applicant if he were to return to Macedonia. It found that he would still be vulnerable to being called up as a reservist from time to time but it was satisfied that the mere fact of him being required to do so would not itself amount to persecution and that, when he did report for reserve duties, he would not be required to engage in the sort of activities of which he has an obvious and deep felt fear. It found that he would be referred for medical opinion and either be excused from further reservist duties or be given substituted civilian duties. It was satisfied that those outcomes did not involve persecution in the sense in which that expression is used in the Convention. For that reason also it rejected the applicant's claim. I am not satisfied that it erred in law in its approach to his claim. 31 I have referred earlier in these reasons to s 476(1)(g) and s 476(4) of the Act. There is no matter identified by the applicant which constitutes a "jurisdictional fact" so as to enliven s 476(4)(a) of the Act: see Curragh at 220 – 221. Those matters of which he complains are matters which might fall within s 476(1)(b) of the Act. I approach them in that light. He referred to a number of pieces of information which, he submitted, had not been considered by the Tribunal or in respect of which in some way the Tribunal had erred by making a finding about a fact which did not exist, or which involved findings based upon references to evidence or documents which he said did not support those findings. 32 One aspect concerned two letters from the Macedonian Community Cultural Centre dated 7 November 1999 and from the Macedonian Orthodox Community Church, St Petka, Inc. dated 5 November 1999, each addressed "To whom it may concern". He submitted that those two letters had been provided to the Tribunal, and had not been considered by it. The respondent did not acknowledge that those letters had been presented to the Tribunal at all, and contended that I should not receive them on this application unless I was satisfied that they had been before the Tribunal. They clearly do not fall into the category of new evidence otherwise admissible upon this application. I have decided that I should receive those two letters in evidence. I formally do so. The first reason is because, it seems to me, it may be necessary in fairness to the applicant to determine by evidence whether they were before the Tribunal at all. It may be possible to embark upon that process by reference to their content. In the event, I do not need to further pursue that question. I have considered their content in relation to this application. Even if they were before the Tribunal, and I am now prepared to assume in the applicant's favour that that was the case, I do not think that the fact that the Tribunal did not refer to them gives rise to the ground of review under s 476(1)(g). In my judgment, neither constitutes or contains evidence of particular facts within the meaning of s 476(4)(b) upon which the decision was based. Nor does either make out the additional requirement to enliven s 476(1)(g), namely that the particular fact did not exist. The letter from the Macedonian Orthodox Community Church, St Petka Incorporated, is really no more than a reference from the very Reverend Father Nowan Despotoski as to the character of the applicant and his family. It is not direct evidence going to a matter upon which the Tribunal based its decision. The letter from the Macedonian Community Cultural Centre is in part a reference and in part a hearsay report of material from the applicant (much of which the Tribunal has accepted in any event) and in part is in the nature of a submission on behalf of the applicant to the Tribunal, similar to the submission which was put in the course of the Tribunal's hearing. There is one additional aspect of that letter to which I will refer later in these reasons, but it does not otherwise demonstrate that the Tribunal based its decision on the existence of any particular fact which did not exist. 33 I make similar comments about the other documents or findings of the Tribunal to which I have not yet referred. The applicant complained that the Tribunal had not referred to evidence of a further medical appointment arranged with Dr Kusminovski, and said that it was incorrect that he had seen Dr Kusminovski on a single occasion only. Whether he had seen Dr Kusminovski once or more than once is not a particular fact upon which the decision was based. The Tribunal, in fact, accepted the nature of the applicant's illness and its relationship to his initial military service. He also referred to two letters from the Ministry of Defence of Macedonia issued on 15 October 1997 and 3 November 1999. I have already referred to one of them. The other is a request for completion of military service. The Tribunal referred to that document in its reasons. It is not shown to have misapprehended the contents of that document. The way in which it considered those two documents does not demonstrate that it has based its decision on the existence of a particular fact or facts which did not exist. I note also that the applicant submitted that the Tribunal understood that he had tried to desert from the Yugoslav army rather than that he had in fact deserted from the Yugoslav army. However that submission was based upon part of the written submissions of the respondent on this application. In fact, the Tribunal did find that the applicant deserted the Yugoslav army in 1991. Accordingly, that matter is not a matter which is a fact which did not exist. 34 The applicant further contended that the Tribunal had erred in treating the position in Macedonia as being calm and ordered, whereas the applicant in his submissions contended that it was far from paradise. However, the Tribunal made a finding on the state of affairs in Macedonia. It identified the material upon which it based that finding. It cannot be shown that its finding is based upon a fact which did not exist. 35 The applicant also submitted that the Tribunal erred in basing its decision upon the way in which he would be treated if he were to return to Macedonia. He said that training exercises necessarily involve the use of guns, and that if he refused to use guns in training exercises he would be treated as a traitor in his country and be prosecuted. The difficulty with that submission is that it is contrary to the Tribunal's findings as to how the Macedonian Army would react when and if he were required to further attend reserve duties. I have referred to those findings already. The Tribunal identified the reasons for its finding, in particular the way in which the applicant had been treated when previously he had been required to attend for military training in 1997 and in 1994 and in the light of the absence of any adverse steps taken in relation to him in 1999 or on those earlier occasions. Although the applicant's submission may have given rise to an argument available if this were an application to review the decision of the Tribunal on the merits, it does not give rise to the ground of review under s 476(1)(g). I am not satisfied that the particular facts as found by the Tribunal were facts which did not exist in that regard. 36 The result in my judgment is that this application must be dismissed. In the course of his reply to submissions on behalf of the respondent, the applicant did however make an additional submission that he would be persecuted if he were returned to Macedonia and would be subject to criminal charges for two reasons. Firstly, because he had not attended a call up notice, even though he received yet a more recent one after the Tribunal had delivered its reasons, and secondly because he had departed Macedonia without returning to the authorities his military booklet, a course apparently required under the defence law of Macedonia. That latter matter was something he developed by reference to part of the letter from the Macedonian Community Cultural Centre of 7 November 1999 which purported to contain translated extracts from the military booklet as well as a copy of a page of that booklet. To the extent to which those claims were available and not pursued before the Tribunal, it is not now appropriate for the Court to entertain them. To the extent to which they give rise to new claims arising after the Tribunals decision, subject to the Ministers consideration under s 48A of the Act, they may give rise to new information in support of a further application for a protection visa. I do not intend to convey that they have that quality or character. I simply do not know. I did not receive evidence in any detail on those matters. I point them out because it is plain that they are not matters which the Court on this application can entertain. 37 It is easy to understand the applicant's strong desire to remain in Australia with his family, given the experiences which he has endured and his reaction to them, all of which the Tribunal has accepted. The Tribunal expressed the view that his fears may be irrational. They may well deserve that description, but it found they are nevertheless real. However, having regard to the matters argued on this appeal and the way in which the Tribunal approached the applicant's claim, in my judgment this application must be dismissed. I so order. 38 Mr Jordan tells me that the making of an order for costs will not inhibit the applicant from pursuing such other legal rights as he may have under the Act. In those circumstances, it seems to me appropriate to make the usual order for costs. I order that the applicant pay the respondent costs of the application to be taxed.

I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate: Dated: 22 June 2000

Counsel for the Applicant: The Applicant appeared in person

Counsel for the Respondent: Mr D Jordan

Solicitors for the Respondent: Australian Government Solicitor

Date of Hearing: 6 June 2000

Date of Judgment: 6 June 2000