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."