VSAB v Minister for Immigration and Multicultural and Indigenous Affairs

REASONS FOR JUDGMENT 1 This is an appeal from a judgment of Connolly FM delivered on 24 August 2004: VSAB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 520. His Honour ordered that an application for judicial review of certain decisions made by the Refugee Review Tribunal ("the Tribunal") on 7 June 2002 be dismissed. 2 The issue raised by this appeal is whether the Federal Magistrate erred in declining to set aside the Tribunal's decision, it having been contended before his Honour that the Tribunal had mistakenly found that the second appellant ("the husband") was a citizen of the Former Yugoslav Republic of Macedonia ("FYROM").

The Factual Background 3 The first appellant, ("the wife"), and at least one, and possibly both, of the appellants' children, are citizens of FYROM. The wife and children arrived in Australia on 13 December 2000, as the holders of visitor visas. The husband followed them several weeks later, on 3 January 2001. He entered Australia on a FYROM passport issued on 23 July 1998. However, despite that fact, he claimed from the outset that he was a national of Bosnia-Hezergovina, and not a national of FYROM. 4 On 25 January 2001, the husband lodged an application for a protection visa. The wife and the two children were included in this application as members of the family unit. In the application, the husband described his current citizenship as Bosnian, and stated that he sought protection in Australia so that he would not have to return to Bosnia-Herzegovina. He claimed that he feared harassment and persecution from Serb nationalists if required to return to Bosnia-Herzegovina because of his opposition to their policies, and his "mixed marriage" to a Macedonian. He insisted that he was not, and never had been, a national of FYROM. He also claimed that he was not entitled to reside in that country. 5 On 12 April 2001, a delegate of the respondent Minister refused to grant the husband and the other members of his family a protection visa. The delegate rejected his claim that he had no right to reside in FYROM, and found that he was, in fact, a national of that country. The delegate noted that the husband had not been mistreated in FYROM, and that he did not claim to fear persecution if required to return to FYROM. 6 On 31 May 2001, after the delegate's decision was given, the wife lodged a separate application for a protection visa. Included in that application were the husband, and the two children, again as members of the family unit. The wife claimed to fear harm in FYROM "on account of the widespread ethnic violence in that country", and the "total breakdown of law and order in Macedonia with the uprising of the Albanian minority". 7 Perhaps not surprisingly (given that the wife's claim did not really address the issue of persecution on Refugees Convention grounds), a different delegate of the respondent Minister, on 15 November 2001, refused the wife's application for a protection visa. The delegate noted that the wife did not claim to have suffered discrimination, or to have been persecuted, in FYROM in the past. The delegate accepted that the husband might have difficulty in finding employment in FYROM because of his Serbian ethnicity. However, the delegate concluded that any discrimination that the husband might suffer in that regard would not be of sufficient gravity to amount to persecution. Importantly, the delegate did not accept that there was more than a remote chance that the wife would become a victim of any instability or conflict between Albanians and Macedonians in the foreseeable future if she returned to FYROM. 8 In two separate decisions delivered on 24 May 2002, the Tribunal affirmed the two separate decisions by the different delegates not to grant the husband or the wife protection visas. The key findings of the Tribunal in relation to the husband's application were as follows: "The Applicant lived in the country that is now known as FYROM, from 1991 until he departed for Australia, apart from periods spent in Bosnia, where he comes from and went to in order to check his property, and significant time spent on the road in Europe, pursuing his livelihood. He traveled with a passport issued by FYROM authorities in 1998, a passport that replaced another that had been issued in 1995. His new passport showed his usual family address in Skopje as his residential address. He was equivocal about his nationality, stating that he paid bribes for the passport and had never attended a citizenship ceremony. His wife stated that he had the right to enter FYROM with that passport. The Applicant has been married to a citizen of FYROM since 1986 and has lived in that country for many years. His children are Macedonian nationals, including one child who was born in Serbia and the Applicant has owned property and conducted his business from Skopje without trouble. He has been the recipient of two passports issued by FYROM authorities and has habitually departed and re-entered that country using his FYROM passport without hindrance. The Australia Department of Foreign Affairs and Trade (DFAT) advised in 1994: "More stringent requirements for acquiring Macedonian citizenship were introduced and the fee was raised from 50 to 500 US dollars with effect from 10 November. In addition to 15 years' residence or 3 years' marriage, applicants must provide a medical certificate, a certificate of fluency in the Macedonian language, confirmation that they have no criminal record, and proof of residence." [CX2432: "FYR Macedonia, November - December 1993" Cable BG 61260, 14 January 1994] At that stage, the Applicants had been married for seven years. The Applicant speaks Macedonian and his application form states he has no criminal record. His spouse suggests he has the right to enter and reside in FYROM. Having regard to the circumstances, the Tribunal is satisfied that he is a national of FYROM, as evidenced by the issue of the passport to him, notwithstanding that he may have paid some bribes when it was issued. It is plausible that he is also a national of Bosnia/Herzegovina. If that is the case, each of those countries is an appropriate country of reference in assessing his refugee status. In this matter, the Tribunal finds, for the reasons given below, that he is not a refugee in reference to FYROM, so it is unnecessary to assess his status vis a vis Bosnia / Herzegovina." (emphasis added) 9 The Tribunal went on to discuss a number of more general matters. It then referred to certain additional written submissions that had been filed on behalf of the husband by his adviser. Relevantly, those additional submissions included the following claims: "[The husband] is not able to obtain Macedonian citizenship. The purchase of a passport does not guarantee citizenship for himself and his daughter (a Yugoslav). As a Serb the citizenship application will be denied. [The husband] has made enquiries to obtain citizenship but without a massive bribe he was not able to secure documentation. This discrimination is entirely on account of his ethnicity. Without Macedonian citizenship [the husband] is unable to purchase property, access what social security and justice is available and obtain any rights. To obtain any access to services will require bribing officials. Renewal of his passport will require an even higher bribe as he is at the mercy of a corrupt policeman." (emphasis added) 10 The Tribunal addressed these additional written submissions in the following terms: "After the Tribunal had initially signed off this determination on 20 May 2002, it received further written submissions from the Applicants' adviser. Those submissions reiterate the Applicant's objections to Serbian nationalist policies and his avoidance of fighting for the Serbian cause, as well as the situation for Serbs in FYROM. They reiterate his claim that he is not a Macedonian citizen, and only holds a Macedonian passport because he bought one, adding the further explanation that he has only lived in FYROM for six months as he was constantly on the move. He stated that he had evaded repatriation to his place of birth through possession of his FYROM passport, but he was at risk of being "moved on". The submissions also reiterate evidence given by the Applicants about the consequences of having a mixed marriage, both for themselves and their children. The Tribunal has considered the contents of the post-hearing submissions. It remains satisfied that the Applicant is, in fact, a national of FYROM. It notes the apparent inconsistency between claims that the Applicant has avoided repatriation to, and persecution in, his home town and his own evidence that he went there on several occasions to check family property. It remains satisfied, in the context of the information canvassed in the body of the record of this decision, that the Applicant and his family members do not face a real chance of persecution should they return to FYROM". 11 In substance, therefore, it may be seen that the Tribunal found that the husband was a national of FYROM, notwithstanding his protestations to the contrary, because: · he had lived there, on and off, since 1991; · he was in possession of a FYROM passport that had been issued to him in 1995, and renewed in 1998; · the passport nominated Skopje, the capital of FYROM, as his place of residence; · he had travelled regularly using the passport; · he had been married to a national of FYROM since 1986; · at least one, and possibly both, of his children were nationals of FYROM; · his wife had told Australian immigration authorities, after her arrival in this country, that he had the right to enter FYROM on his FYROM passport, and to reside there; and · Department of Foreign Affairs and Trade ("DFAT") information relating to FYROM, which set out the requirements for acquiring FYROM citizenship, suggested that the husband met those requirements. In particular, as the Tribunal noted, the husband had been married to a Macedonian national for more than the requisite three years, spoke Macedonian, and had no criminal record. 12 It was essentially for these reasons that the Tribunal concluded that, irrespective of whether the husband was a national of Bosnia-Herzegovina, as he claimed, he was also a national of FYROM. 13 Having found that the husband was a national of FYROM, and having also found that he could return to that country and live there in safety, the Tribunal concluded that it was unnecessary to go on and determine whether his claims regarding the risk of persecution in Bosnia-Herzegovina had any substance.