Kesic v Minister for Immigration & Multicultural Affairs [2001] FCA 130

FEDERAL COURT OF AUSTRALIA

Kesic v Minister for Immigration & Multicultural Affairs [2001] FCA 130 Immigration – refugees – whether Refugee Review Tribunal failed to consider the motivation for the applicant's conscription – whether Tribunal should have considered persecution by reason of membership of a particular social group. Migration Act 1958 (Cth), s 476(1)(e). Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 170 ALR 553, cited. Minister for Immigration and Ethnic Affairs v Respondent A (1995) 57 FCR 309, cited. Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225, cited. Lama v Minister for Immigration and Multicultural Affairs [1999] FCA 1620 (FC), cited. Minister for Immigration and Multicultural Affairs v Zamora (1998) 85 FCR 458, cited.

MILAN KESIC v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 1283 OF 2000 SACKVILLE J SYDNEY 27 FEBRUARY 2001

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1283 OF 2000

BETWEEN: MILAN KESIC

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: SACKVILLE J

DATE OF ORDER: 27 FEBRUARY 2001

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed. 2. The applicant pay the respondent's costs.

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 1283 OF 2000

BETWEEN: MILAN KESIC

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: SACKVILLE J

DATE: 27 FEBRUARY 2001

PLACE: SYDNEY

REASONS FOR JUDGMENT

The Proceedings 1 By an amended application filed in court, the applicant seeks review of a decision of the Refugee Review Tribunal ("RRT") made on 16 November 2000. The RRT affirmed a decision of a delegate of the respondent ("the Minister") not to grant the applicant a protection visa. 2 The amended application raises two grounds of review, as follows: "1. The RRT failed to consider that the police and/or the SPS [the Socialist Party of former President Milosevic of Yugoslavia] may have been motivated by persecutory reasons in respect of the summons for military service served upon the applicant. 2. The RRT failed to consider that the applicant had a well-founded fear of persecution by reason of his membership of a social group being a group comprising persons associated with the SPS and the Milosevic regime." Each is said to constitute an error of law and thus give rise to the ground of review provided by s 476(1)(e) of the Migration Act 1958 (Cth) ("Migration Act"). 3 The meaning of the expression "persecutory reasons" in ground 1 is not clear. I infer from the submissions of Mr Killalea, who appeared for the applicant, that ground 1 is intended to suggest that the RRT failed to consider whether the police were motivated by the applicant's imputed political opinion, when they summonsed him to perform compulsory military service during the war in Kosovo. 4 Mr Killalea acknowledged that the applicant, who was represented in proceedings before the RRT and whose solicitor prepared a written submission on his behalf after the hearing, had never suggested that he feared persecution by reason of his membership of a particular social group. He submitted that the RRT should nonetheless have considered the question. In the course of argument, Mr Killalea offered an alternative definition of the "particular social group" of which the applicant was a member than that referred to in ground 2 of the amended notice of appeal. The alternative was as follows: "persons who were known by the police to have been employees of Marko Milosevic, the son of former President Milosevic of Yugoslavia."