Djuraj v Minister for Immigration & Multicultural Affairs

Djuraj v Minister for Immigration & Multicultural Affairs - [2001] FCA 986 - FCA 2001 case summary — Zoe

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4 The FRY comprises the two republics of Serbia and Montenegro. Kosovo is a province of Serbia. Though Serbia has a large ethnic Serbian majority, the population of Kosovo is predominantly ethnic Albanian, most of whom are Muslims. Ethnic Albanians who are Catholic are a small minority religious group in Kosovo. Serbs are another small ethnic minority in Kosovo. 5 In its reasons, the Tribunal described the applicant as a citizen of Yugoslavia who arrived in Australia on 10 April 1999 and lodged an application for a protection visa soon after. The Tribunal accepted that he was who he said he was, ie, that he was Simon Djuraj, that he was born in Decani in the province of Kosovo in Yugoslavia and that, at the time of the Tribunal hearing, he was eighteen years of age. The applicant's evidence about these matters was supported by the birth certificate which the Tribunal said "confirms the name and date of birth he has given and also the fact that he was born in Decani in Kosovo". 6 The Tribunal also found that his family home in Decani was blown up in December 1998. The Tribunal accepted the applicant's claims that his father was injured in the explosion - in the course of the hearing, it said that it did not have any reason to doubt that the applicant's father was hurt and had been in hospital. Though it is not completely clear, the Tribunal appears also to have accepted what the applicant said about his family's movements after the explosion to the effect that they went to Pec in Kosovo near Decani for medical assistance for his father, then to Ulcinj in Montenegro in the FRY and from there, across the border into Albania, where the applicant's father was taken to hospital in Shkoder. The unsupported claims of the applicant were the Tribunal's only source of information about the blowing up of the family home and his father being injured (as well as the subsequent movements by the family). 7 But though it was prepared to accept the applicant's claims about these matters, it is apparent that the Tribunal had considerable reservations about the applicant's credibility and was not prepared to accept as reliable everything he said. It recorded in its reasons some of the inconsistent claims that the applicant made, such as what he had to say in his visa application about when he and his family left Decani to go to Ulcinj in Montenegro, which contrasted with what he said about that at the hearing. There were other inconsistencies between the claims the applicant made at various times in material provided by him and which was before the Tribunal, but to which the Tribunal did not expressly refer in its reasons. It is also apparent that the applicant's credibility and his case for claiming refugee status both suffered heavily because of his reliance on the three documents referred to in ground 2 of his application which the Tribunal concluded were bogus. 8 The Tribunal resolved the applicant's claim to a protection visa by putting to one side some of the issues raised by his claims of past persecution and fear of future persecution without making findings on them and by identifying a decisive answer to the applicant's claim to refugee status in the changed circumstances in Kosovo since his departure sometime before April 1999. It did not, however, rely solely on that consideration: it also here had regard to what it considered to be the absence of any claim by the applicant that he was perceived to be a Serb collaborator, ie, to belong to a group or class at risk of persecution in Kosovo, as bolstering its opinion based on the changed circumstances. 9 The applicant contended that it was not enough to dispose of his application for the Tribunal to find, in reliance on these changed circumstances, that it could not be said that he now has a well-founded fear of persecution for a Convention reason. He argued that, having found that his home was bombed at a time of ethnic and religious violence in Kosovo, the Tribunal was also bound to consider whether, by reason of that past experience, he still had such a fear. It was said that the Tribunal's failure to consider that amounts to an error of law affecting the decision. He relied on Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 and what Gaudron J said in Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 at pars [68] to [70]. 10 The respondent submitted in effect that the Tribunal adequately dealt with the bombing incident, given that it stated in its reasons:

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12 The respondent submitted that, despite criticisms of the Tribunal's reasoning, it disclosed no error of law within s 476(1)(e), as explained in Yusuf. 13 Apart from the findings set out above, however, the Tribunal made few other explicit findings about the applicant's personal background or experiences in, or reasons for leaving Kosovo that are relevant to whether he is a Convention refugee. The Tribunal did not make any finding on the applicant's claims that he and his family had been the target of religious and ethnic persecution in Kosovo in the past, apart from expressing its want of satisfaction that the bombing incident had been so motivated. Nor did the Tribunal attempt to identify what may have been the motivation for this unusual event, though it occurred at a time when, as it put it, "disturbances and skirmishes had been going on in [Kosovo]". (The paragraph of the US State Department Report on which the Tribunal here relied described what had been happening from early 1998 as "a full fledged separatist insurgency" by Kosovo's ethnic Albanians against the Serbian Milosevic regime, which responded with "a brutal police and military crackdown".) The Tribunal did not make any finding about the applicant's own claim of fear of future persecution in Kosovo for religious and ethnic reasons. This is not surprising since, contrary to ground 3(b) of the application for review, the Tribunal did not even make any findings about whether this Yugoslav citizen was an ethnic Albanian or whether he was of the Catholic faith, as he claimed was the case. 14 These were all important issues for the Tribunal because it had information before it, which it accepted as coming from reliable sources and to which I will refer later, that showed that ethnic Albanians who were Catholics had experienced in the recent past ill-treatment in Kosovo at the hands of their fellow ethnic Albanians who were Muslims and were continuing to experience harassment long after the applicant had arrived in Australia. 15 In order to determine the issues raised by grounds 2 and 3 of the application, it is necessary to deal in some detail with the Tribunal's reasons. I was reminded by the respondent of the well-established principle that "the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed": Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. The reason is there identified, viz, that a court of judicial review "must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision". This principle of restraint applies to all judicially reviewable administrative decisions, including those of the Tribunal. But in applying it to a decision-maker like the Tribunal, the nature and role of the Tribunal is also, I think, to be kept in mind by the Court. Members of the Refugee Review Tribunal perform a significantly different function from public servants in the mainstream of federal executive activity who, from time to time, are called upon to make administrative decisions as part of a range of duties conferred on them. The Tribunal was described by the Minister in the Second Reading Speech on the Migration Reform Bill 1992 as: "A specialist refugee review tribunal … established to provide independent and determinative merits review of onshore refugee status decisions". Members of the Refugee Review Tribunal are appointed for the sole purpose of fulfilling the role of professional decision-makers to "provide quality independent merits review" of lower level administrative decisions (Explanatory Memorandum to the Migration Reform Bill 1992, par 41). The obligation imposed by s 430 the Migration Act 1958 (Cth) to provide in written form both reasons and findings, in the context of its decisions being subject to judicial review, shows that the Parliament expects the Tribunal to be capable of giving a coherent and informative explanation for how it reaches its ultimate conclusion for or against an applicant. The Tribunal accepts this obligation: in its Corporate Plan, set out in the Tribunal's current Annual Report, it promises to "ensure good decision-making by [among other things] providing clear and cogent reasons for our decisions". The principle of restraint is one that cautions against too zealous a search for error. It is not a principle that immunises the Tribunal's reasoning from that critical examination which is part and parcel of the function of a court charged with review of the Tribunal's decision to see if it is flawed with reviewable error. It will usually only be by such analysis that the Court will be able properly to discharge its duty of review, especially now that s 476 has been revealed by Yusuf as conferring on this Court a more extensive review jurisdiction in respect of the Tribunal than had previously been thought to be the position. The point is made in Yusuf at par [69]:

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20 The three documents which the applicant produced to the Tribunal were in the Albanian language. All bear dates in December 1999. On their face, they confirmed his claim to have fled Kosovo for Convention reasons. The Police Prefecture document purported to verify that the applicant was "a refugee in Albania in the period of the war of Kosovo … due to the problems of enmity (blood feud) that were created in the time of the war …". The Albanian Red Cross document purported to verify that "the family of [the applicant] is registered with our Organisation as displaced from Kosovo during the period of the war in Kosovo". The "All Nationality Organisation of Blood Feud Reconciliation" document purported to verify that the applicant "with his family are from Kosovo, refugees of the period of the war in Kosovo …". 21 The Tribunal found that the documents and their contents were "bogus" and that the last of them had been created for the express purpose of advancing the applicant's claims. 22 One of the two considerations the Tribunal relied on to conclude that the documents were not genuine was that all three referred, in effect, to the applicant and his family as having been driven out of their home in Kosovo during "the war in Kosovo": the Tribunal considered that could not be correct because what it described as "that war" only began on 24 March 1999 and the applicant's house had been blown up three months earlier. The other consideration was the Tribunal's concern that all three documents appeared to have been created at the one time. 23 The first ground upon which the Tribunal relied to reject the documents is open to criticism. It is difficult to see how the Tribunal could sensibly conclude that the three documents were bogus for the first reason it gave for that conclusion. The passage in the Introduction in the US Department of State Country Report from which the Tribunal obtained the 24 March 1999 date as the start of the "war", ie, the NATO bombing campaign, and also the information that "disturbances and skirmishes had been going on in [Kosovo] for some time before March 1999" shows that circumstances in which Catholic Albanians were likely to be persecuted by Muslim Albanians in Kosovo did not arise only on 24 March 1999: this US Department of State Country Report demonstrates that Kosovo was in turmoil throughout the preceding twelve months as a result of the Milosevic regime's brutal oppression of ethnic Albanians in Kosovo. 24 But it is unnecessary to consider further the illogicality of the Tribunal's reasoning for considering, on the first ground referred to, that the documents were bogus. It was entitled to reach that view on the second ground it gave. I think the material relied on by the Tribunal to arrive at its second reason for rejecting the documents was sufficient to answer the challenge made in ground 2 of the application. 25 I therefore reject the applicant's contention that there was no evidence or other material before the Tribunal to justify its conclusion on a matter of significance to its ultimate decision that these documents and their contents were bogus. 26 However, the use the Tribunal made of its view as to the want of authenticity of the documents requires further consideration. 27 The Tribunal's conclusion that it was not satisfied that the motivation for the bombing was either religion or any blood feud is confidently expressed. But it did not give any explanation for that conclusion other than that which can be gathered from the passage in its reasons set out above which ends with this conclusion. Nor did it attempt to identify the real motivation for that act, an act of extreme violence, at a time of ethnic turmoil, said by the applicant to have been directed at his family because of their religion, before the Tribunal rejected the claim by the applicant that it was an act of religious persecution. It appears from the passage of the Tribunal's reasons in which it deals with the documents that (though it was still prepared to accept what the applicant had to say about his home being bombed) the Tribunal was heavily influenced, in rejecting the applicant's evidence that the bombing was done to drive out the applicant and his family because they were Catholics, by its conclusion that the three documents which the applicant put before the Tribunal in support of his claim to be a refugee were bogus. 28 It also appears from this same passage in its reasons that, in concluding that it was not satisfied that the applicant was seen as a Serbian collaborator or as an enemy of the Muslims, the Tribunal relied, in part, on its opinion as to the documents being bogus. Claims that the applicant's family were perceived by their Muslim neighbours to be Serb collaborators and had for that reason attracted the enmity of the Muslims were made in two of the three documents. The Tribunal's lack of satisfaction as to whether the applicant was perceived to be an enemy of the Muslims is recorded in the middle of a passage of its reasoning in which the Tribunal sets out its view that the Blood Feud Reconciliation document is neither genuine nor attests to real events and immediately before the Tribunal records an explicit finding that this particular document was created for the express purpose of advancing the applicant's claims. This paragraph, moreover, appears in a longer section of the Tribunal's reasoning in which it explains why it considers all three documents are bogus and do not record actual events. 29 Once the Tribunal found that the documents were bogus, it was, of course, fully entitled to place no reliance on the statements in them to the effect that the applicant and his family fled Kosovo because of persecution they suffered there. But it went beyond that and relied on its conclusion that the documents were bogus to make positive findings adverse to the applicant on two issues of significance to his claim to be a Convention refugee. 30 That documents produced by the applicant asserting that he was a refugee from religious persecution were bogus does not justify a conclusion that the applicant's claim based on other material that he was the victim of persecution because of his religion is also bogus. A court cannot find proved the opposite of that which a witness has asserted because the court disbelieves the witness: Steinberg v Federal Commissioner of Taxation (1975) 134 CLR 640 at 694. That is not a rule of law applicable only to courts. It is no more than a logical proposition. The want of logic in concluding that, because the party lacks credibility, the true facts are the reverse of what that party asserts them to be is emphasised in refugee cases. Speaking of the pressure of circumstances that lead some applicants for refugee status to tell lies, Gleeson CJ and MuHugh, Gummow and Hayne JJ, in Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23 at [32], said:

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39 Though a decision involving only factual evaluations may thus be flawed with reviewable error of law, the task of fact-finding is committed to the Tribunal and this Court can intervene only if the Tribunal's decision is infected with error of law. It is not always a simple task to determine whether, in view of the way it has dealt with material before it, the Tribunal has made a non-reviewable error of fact or a reviewable error of law in the course of its fact-finding process by ignoring relevant information or by acting on irrelevant information. But if it can be seen that the decision-maker has identified information as having significance to the decision it has to make (because it is capable of affecting the decision), but has misunderstood its probative effect or has otherwise misused that information in arriving at its decision, that will I think, at least in general, be an error of fact beyond judicial review. If, however, it can be seen that the decision-maker has overlooked or otherwise ignored information significant to that decision, that, I think, will be properly characterised as an error in the decision-making process constituted by a failure to take into account a relevant consideration and thus a reviewable error of law within s 476(1)(e). 40 As Yusuf shows, where the decision-maker is, like the Refugee Review Tribunal, bound by statute to set out the findings which it regards as critical to its ultimate decision and to give reasons for arriving at that decision, whether such an error of law has occurred in a particular case will commonly depend for its exposure on what emerges from an examination of the reasons given by the decision-maker and of the information before it. 41 I consider that the Tribunal made an error of law because it ignored relevant material, viz, the statements made by the applicant in his visa application and in oral evidence to the Tribunal to the effect if not in express words that, as a Catholic, he, together with his family, was seen by Muslim ethnic Albanians as their enemy. That the Tribunal can be said to have ignored this material is, I think, established by the Tribunal's assertion that he did not even make such a claim and by the Tribunal's failure to mention these assertions by the applicant in its reasons (save that it did early in its reasons note the applicant's claim about why his home was bombed). I do not think the Tribunal's reasons are consistent with the Tribunal having been alert to what the applicant had to say in this regard but having assessed his claims in a factually erroneous way as not amounting to a claim by the applicant that he feared harm because he was perceived to be an enemy with the Muslims. For the reasons given, I do not think the principle of judicial restraint in scrutinising the Tribunal's reasons for possible error is infringed by subjecting the Tribunal's reasons to the sort of examination which I have undertaken. 42 The Tribunal's finding that, in effect, there was no such perception attaching to the applicant was of critical importance to its ultimate conclusion adverse to him: that was one of the grounds it gave for its view that the bombing of his home did not have an ethnic or religious motive. If it had had regard to what the applicant said about being seen to be an enemy of the Muslims, the Tribunal might have reached a different conclusion about the motivation for the bombing and would then have been confronted with powerful evidence of past persecution of an extreme kind in a case in which it accepted as reliable information from US government and other sources showing that Muslim persecution of Catholics continued in Kosovo through the latter half of 1999 well into 2000. By ignoring this information from the applicant, the Tribunal also found support for its critical conclusion that, by reason of the "dramatic" changes in Kosovo since the applicant's departure, he no longer had a well-founded fear of persecution if he were to return to Kosovo. It is apparent that the Tribunal did not resolve the case against the applicant solely on the basis that the situation in Kosovo had so changed since his departure that he could no longer be said to have a well-founded fear of persecution for that reason alone. The Tribunal considered it necessary to take into account not only the changed circumstances, but the fact, as it saw it, that the applicant "has not claimed that he or his family have come under suspicion of collaboration with the Serbs", ie, by their Muslim follow ethnic Albanians. But in finding support for its conclusion based on the changes in Kosovo that the applicant was not perceived to be a Serb collaborator, it ignored the fact that he had made a claim tantamount to that, viz, to be the object of Muslim enmity because of his religion. 43 Why the Tribunal felt the need to take into account this second consideration is, I think, clear enough from its reasons. The material it relied on to conclude that there has been a relevant change in circumstances in Kosovo since the applicant's departure demonstrates the reality of changes at the political level that justify an optimistic view for the future for Kosovo. But that same material, all set out in the Tribunal's reasons, is full of accounts of continuing ethnic and religious harassment and violence and full of reservations about just how uncertain is the future for Kosovo, as an area torn by recent ethnic and religious violence. 44 This material includes four reports by the Reuters News Service in the period 20 October to 3 November 2000. These reports focus on the national elections held in September 2000, and the subsequent ouster of the government of Slobodan Milosevic in early October and on the municipal elections conducted by international administrators in Kosovo in late October 2000. The optimism in the reports centres on the fact that these are the first democratic elections ever held in Kosovo. But there is much in the passages set out by the Tribunal in its reasons from this material that suggests that the Tribunal's conclusion from this material "that the situation [in Kosovo] has changed dramatically since the applicant's departure" cannot be accepted as other than a highly optimistic evaluation of the applicant's prospects of enjoying freedom from harm at the hands of his Muslim fellow ethnic Albanians if he were to return to Kosovo. 45 The report of 29 October 2000 on the then recent elections in Kosovo comments at some length on the continuing tensions between the ethnic Albanians and the Serbs in Kosovo. It states:

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46 The report of 30 October comments on the success of moderate ethnic Albanians over extremist ex-KLA Albanians in the Kosovo municipal elections, but notes a comment by the new Yugoslav President, Kostunica, who called these Kosovo elections "invalid because local Serbs boycotted them in protest at ethnic Albanian violence that had confined them to NATO-guarded enclaves". Another of the reports to which the Tribunal referred was the UNHCR report of 5 June 2000 titled "Kosovar Albanians". The Tribunal quoted from this report set out above that contains the evaluation by the High Commissioner that Catholic Albanians may still be at risk at the hands of Muslim Albanians, at least in some areas of Kosovo. This is despite the large NATO military ground presence in Kosovo. 47 This is strong evidence that the Yugoslav government (and the UN and NATO) authorities there continued, at least into mid-2000, to be unable to protect Catholic Albanians in Kosovo from harassment well capable of amounting to persecution by their fellow Muslim Albanians there and that those authorities continued up to late 2000 to be unable to prevent more general ethnic violence in Kosovo. 48 If the Tribunal had not ignored the applicant's claims that he and his family had attracted the enmity of their Muslim neighbours, its ultimate decision may well not have been the same. 49 I would therefore uphold the applicant's challenge to the Tribunal's decision on the ground of error of law. 50 The Tribunal, in determining whether a person has a well-founded fear of persecution for a Convention reason, may also make an error of law if at the end of its fact-finding process it fails, in an appropriate case, to ask "What if I am wrong?". A failure by the Tribunal to ask that question, in such a case, will reveal error of law constituted either by an erroneous understanding of what constitutes a well-founded fear of persecution or a failure to properly apply the legal test governing what constitutes such a fear to the particular facts found by the Tribunal. 51 The circumstances in which the Tribunal is bound to ask that question before it is entitled to hold that a person is not a Convention refugee are illustrated by what was said in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559. Six members of the Court rejected judicial criticism of the Tribunal for making findings of fact before it evaluated whether there was a real chance of persecution for a Convention reason. They said, at 575 - 576:

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60 This report, which was before the Tribunal and upon which it was prepared to rely, records extensive and extreme persecution of the mostly Muslim ethnic Albanian population of Kosovo by Serbs in the first six months of 1999 until UNMIK came on the scene and, in the last six months of 1999, extensive and extreme persecution of the Serbian population of Kosovo by ethnic Albanians despite the UN and NATO military presence there then. The report also records in this same period harassment of the small Albanian Roman Catholic community largely centred in the southern part of Kosovo (containing the applicant's home town of Decani) and the western part of Kosovo, by Kosovo Liberation Army members or others acting in the name of the KLA "on the pretense that Catholics collaborated with the Serbs during the conflict". The Tribunal also noted from the UNHCR report of 5 June 2000 that harassment of Albanian Catholics in Kosovo by ethnic Albanian Muslims was continuing as at mid-2000 again, despite the UN and NATO presence there. Such harassment in that context is well capable of giving rise to a well-founded fear of persecution for a Convention-related reason: see Minister for Immigration and Multicultural Affairs v Ibrahim [2000] HCA 55 at par [24]. 61 The case cannot, I think, be approached on the basis that the Tribunal made explicit findings against the applicant on such a range of relevant issues as to absolve it from the duty of engaging in reasonable speculation as to whether the applicant had a well-founded fear of persecution. The Tribunal concluded that the applicant's house was deliberately bombed at a time when Kosovo was in turmoil because of Serbian oppression of ethnic Albanians, most of whom were Muslim. Though the Tribunal was not satisfied that the bombing was done for a Convention-related motive, it was not prepared to identify what the motive was or might have been for this act of spectacular violence in a community torn at the time by ethnic and religious strife. Further, the Tribunal was unwilling to make findings on other issues relevant to the applicant's claim to be a refugee, including whether he was in fact an ethnic Albanian citizen of Kosovo and a Catholic. It made no finding on the important claim by the applicant that he was a Catholic in the midst of Muslims, ie, in the midst of people highly likely to harbour deep antipathy to their own Serbian oppressors and anyone associated with the Serbians whether by religion or otherwise. It had information before it from official sources which it was prepared to accept as reliable that showed that ethnic Albanian Catholics were experiencing persecution by Muslim ethnic Albanians in Kosovo long after the UN and NATO established themselves there. This all demonstrates, in my opinion, that the Tribunal was in such a state of sufficient uncertainty about the justification for the applicant's claim to be a refugee as to require it to have asked, at the end of the day, "What if I am wrong?". This is so, in my opinion, notwithstanding the certainty with which the Tribunal expressed itself on the limited range of matters upon which it did make findings. 62 At the very end of its reasons, the Tribunal included the following brief statement that was the subject of brief comment by the respondent:

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64 As appears from Randhawa at 442 - 443, this concept or principle of relocation to a safe part of the refugee-claimant's own state is qualified to the extent that if it is not, as a practical matter, reasonable in all the circumstances for the claimant who establishes a fear of persecution in the home part of his national state to be expected to relocate to another part of that state where he will be free of persecution, he will still be entitled to be recognised as a refugee under the Convention. 65 The Tribunal said that "the concept of relocation does not apply in this case". Having said that, it is difficult to understand how the Tribunal could have considered that what it called "the reasonableness test" as discussed in Randhawa provided the basis for the conclusion (if the Tribunal did truly reach such a conclusion) that the applicant should be denied refugee status because he had the option of returning to parts of the FRY outside Kosovo, where he has lived and worked and has not reported any difficulties in the way of persecution. 66 If the Tribunal should be understood in this final passage of its reasons as having found a discrete ground in this "reasonableness" test for refusing the applicant's claim to refugee status, in my opinion, the Tribunal's reasons here reveal error of law constituted by its misunderstanding of the relationship between the relocation principle and the reasonableness qualification to it. 67 It is doubtful, in any event, whether the Tribunal did conclude that there was such a discrete ground for rejecting the applicant's claim. In its reasons here, the Tribunal uses language that suggests that it did not go beyond noting, without expressing a concluded view on it, a possible argument adverse to the applicant's claim. Further support for so understanding the Tribunal's reasons is provided by the fact that it did not attempt any evaluation of conditions in Montenegro at times relevant to its determination on the applicant's claim, something that would be necessary for it to consider, given that the applicant left Montenegro in late 1998. It might be thought essential for the Tribunal to do this before it could reject the applicant's claim on such a basis. 68 I would set aside the decision of the Tribunal made on 8 January 2001 that affirmed the decision of the delegate of the respondent not to grant the applicant a protection visa. I would also make an order referring the matter to the member of the Tribunal who made the decision for further consideration according to law. I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond.

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