VAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 59

FEDERAL COURT OF AUSTRALIA

VAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 59 VAJ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS V 723 of 2002 WILCOX, COOPER and ALLSOP JJ 5 MARCH 2003 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 723 of 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: VAJ

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: WILCOX, COOPER and ALLSOP JJ

DATE OF ORDER: 5 MARCH 2003

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the costs of the respondent, Minister for Immigration and Multicultural and Indigenous Affairs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 723 of 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: VAJ

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: WILCOX, COOPER and ALLSOP JJ

DATE: 5 MARCH 2003

PLACE: MELBOURNE

REASONS FOR JUDGMENT THE COURT: 1 This is an appeal against a decision of a judge of the Court (Weinberg J) dismissing an application for review of a decision of the Refugee Review Tribunal ("the Tribunal"). The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs, the respondent to this appeal, to refuse to grant the appellant a protection visa. The delegate, and the Tribunal, determined that the appellant was not a refugee within the meaning of the 1951 Convention Relating to Refugees as amended by the 1967 Protocol. 2 The Tribunal found the appellant is a national of the now Federal Republic of Yugoslavia (that is, the confederation of Serbia and Montenegro), as he had claimed. He was born in Vojvodina, in Serbia. However, he was brought up in Croatia; now an independent country. 3 In his application for a protection visa, the appellant said he was seeking to avoid returning to Yugoslavia: "Because there are para-military groups acting independenty [sic] of the authorities and outside control & supervision of the authorities and authorities themselves cannot be trusted to act independently and without taking sides. I am aware that authorities have acted against etnic [sic] minorities including Slovaks & minority religions & participating [sic] in ethnic cleansing." 4 The appellant's application may perhaps be read as invoking claims for protection on the basis of a well-founded fear of persecution for reasons of race (Slovak), religion (Evangelist Church) and political opinions. 5 The Tribunal noted that the appellant left Yugoslavia in 1971. He has returned on four occasions, the last occasion being in 1980. The appellant told the Tribunal that, on this last occasion, he had been arrested by police in Ilok (now in Croatia) but had managed to escape. 6 The appellant claimed the enmity of a Serbian-ultra nationalist named Bulic who had formerly been a police inspector. This enmity apparently arose out of an incident at a party in 1972, but the appellant claimed it had resulted in an attack on him in Israel in 1978. 7 In its summary of findings and reasons, after dealing with the appellant's nationality, the Tribunal said: "As the situation in the former Yugoslavia has changed dramatically since the applicant left there initially in 1971, the Tribunal is not able to conclude that anything that befell the applicant before this departure indicates he faces a real chance of persecution should he now return. This includes his father's background as a partisan, his alleged detention for two days in 1971 and his other alleged bashings from 1965 to 1971. The Tribunal also notes that the applicant returned to Yugoslavia on a number of occasions from Israel. Whilst he may have had some difficulties on the last occasion his ability and his willingness to return indicates that he did not face a real chance of persecution at that time. It is possible that he may have had a brush with the police on his last visit. Again the significant changes in the region since the fall of Communism and the disintegration of the former Yugoslavia mean that there is no real chance he will face persecution now because of any of the events of 1980. The applicant has specifically claimed that he will be killed by Bulic and that this person has sent someone to kill him in the past. However the Tribunal does not accept that Bulic wants to kill him. He spent a long time in Israel after his initial run in with Bulic in 1972 and in the Tribunal's view had Bulic wanted to harm him he would have done it then. The Tribunal is also not satisfied that during this period Bulic sent someone to kill him. Indeed the applicant stated that he saw Bulic on a number of occasions from across the street. It is fanciful in the Tribunal's view that Bulic would want to kill him after all this time. Further the applicant does not know here Bulic now is, although he claimed he heard he returned to Serbia during the conflict, and has not seen him since the end of the 1970s. The Tribunal does not accept that this person will still have a personal grudge against the applicant or one that stems from the applicant father's partisan activities, the applicant's ethnicity or any differences in political opinion that they might hold, including Bulic's alleged adherence to Serb nationalism. In these circumstances the Tribunal concludes that there is no real chance this person will target him if he now returns to Vojvodina. In relation to the applicant's ethnicity, the Tribunal concludes from the country information above that, whilst Slovaks face discrimination, there is still a sizeable population living in Vojvodina and also concludes that there is no real chance the applicant would face harm serious enough to amount to persecution simply because he is a Slovak. The Tribunal notes that the more than fifty percent of Slovaks are followers of the Evangelical Church. The country information above indicates that the church is able to operate in Vojvodina. In these circumstances the Tribunal does not accept that there is any real chance the applicant will face persecution because of his membership of this church. Taking all of the applicant's claims into account the Tribunal finds that there is no real chance the applicant will face persecution because of his Slovak ethnicity, his religion, his political or any imputed political opinion or for any other Convention reason." 8 Mr J Gibson, counsel for the appellant submitted to Weinberg J that the Tribunal had failed to give proper consideration to the appellant's claim. Two deficiencies were identified: a failure to make findings about past persecution and a failure to consider the possibility of persecution by the former police inspector. Weinberg J held neither complaint was made out. 9 In his Outline of Submissions in this Court, Mr Gibson identified the following question: "Whether the Tribunal had failed to apply the correct legal test when determining whether the applicant met the criteria for a protection visa because it failed: (i) to make findings in relation to the applicant's claims of past persecution; (ii) to ask itself whether, in light of a change of circumstances, there is a real chance of such persecution occurring in the future; and (iii) to refer to any evidence or country information and/or make findings in relation to the circumstances presently existing in the applicant's country of nationality going to the risk of prospective persecution for reasons of actual or imputed political opinion." 10 Mr Gibson submitted the Tribunal's findings "contain no assessment of past persecution, no assessment of the manner in which the putative change of circumstances affects a real chance of persecution for the Appellant personally and no evaluation of the circumstances currently existing in Yugoslavia brought about by the completely unsubstantiated and undocumented 'changes' going to the existence or otherwise of a prospective well-founded fear". 11 Mr Gibson argued that assessment of past persecution "is essential to the correct application of the [Convention] test in many if not most cases when specific claims of past persecution are made". 12 Mr Gibson criticised the Tribunal for failing to examine the events that had occurred in the former Republic of Yugoslavia since the appellant's departure in 1971. He said his client was concerned about "State persecution by the Yugoslav State because of his opposition to Serb nationalism", and the possibility that such persecution had not been considered by the Tribunal. 13 We do not think these criticisms are valid. We have been unable to locate any material in which the appellant points to past persecution in what is now Yugoslavia, as distinct from claims about persecution by the police in the 1960's in what is now Croatia. There was an incident with the police in Ilok (now in Croatia) in 1980, but the cause and nature of that incident were not spelled out for the Tribunal. Nothing was put to the Tribunal that might indicate this incident gave rise to a well-founded fear of persecution on a Convention ground. 14 It must be remembered that the appellant ceased to reside in what is now Yugoslavia when he was a small child. According to his application for a protection visa, he went to Israel in 1971 because he was concerned about conditions in what is now Croatia, not the Republic of Yugoslavia. 15 We accept that, in the generality of cases, it will be necessary for the Tribunal to examine claims of past persecution in order to enable it to assess the possibility of future persecution, if the particular applicant is returned to his or her country of nationality. But there may be exceptional cases. This was recognised in a passage in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 cited by Mr Gibson himself. At 574-575, Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ said: "The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability – high or low – of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which thy have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future." 16 It will be noted that the past is to be examined, not for its own sake but as a guide to the future. Where it is clear that, in the country of nationality, there has been a dramatic change of conditions, it may be rational to conclude that the past cannot afford reliable guidance about the future and it is preferable to rely upon such information as is available about current conditions. 17 This was the Tribunal's approach in the present case. Nobody could dispute the Tribunal's statement that "the situation in former Yugoslavia has changed dramatically" since 1971. It was therefore not irrational to conclude that nothing was to be gained by considering in detail what had happened to the appellant before that date. This is especially the case because anything that had occurred had occurred in what is now Croatia, whereas the relevant country for Convention purposes is what is now the Republic of Yugoslavia i.e. Serbia and Montenegro. 18 Appreciating this, the Tribunal obtained and considered information about the present situation of Slovaks in Yugoslavia. Apparently many Slovaks are members of the Evangelist Church. The Tribunal dealt with this material in the last three paragraphs of the passage from its reasons that we set out above. 19 Mr Gibson put much emphasis on the alleged persecution of the appellant, in what is now Croatia, between 1966 and 1971. In his written submission in support of his application for a protection visa, the appellant related his political beliefs to his Slovakian ethnic background. But it was asserted that the reason for his mistreatment by the police was that he was perceived to be opposed to Serb nationalism, or that his father had been a partisan during the war. Assuming this can be regarded as persecution on account of political opinion (a debateable matter), all this activity occurred in what is now Croatia. There is nothing to indicate that the appellant would face similar problems if returned now, over 30 years later, to what is now Yugoslavia. It is not as if the appellant had a high profile political position that would be likely to make him notorious in Yugoslavia. The Tribunal did deal with the pre-1971 incidents, albeit briefly, in saying that it "is not able to conclude that anything that anything that befell the applicant" before 1971 indicates he faces a real chance of persecution should he now return. We see no reviewable error in that approach. 20 We are not convinced that the Tribunal failed to deal with all the issues raised at the hearing before it. In particular, the Tribunal dealt expressly with what appears to have been the appellant's core submission as to fear of persecution, the likelihood of suffering harm from Bulic. 21 Weinberg J was correct to dismiss the application for review. The appeal must be dismissed with costs. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Court.