Alijagic v Minister [1999]

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 1050 OF 1998

BETWEEN:

ZUBEJDA ALIJAGIC Applicant

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent

JUDGE: HELY J

DATE OF ORDER: 24 MARCH 1999

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1.  The decision of the Refugee Review Tribunal of 9 September 1998 be set aside.

2.  The matter is remitted to RRT for determination according to law.

3.  The respondent pay the applicant's costs of the application.

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

NG 1050 OF 1998

BETWEEN:

ZUBEJDA ALIJAGIC Applicant

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent

JUDGE: HELY J

DATE: 24 MARCH 1999

PLACE: SYDNEY

REASONS FOR JUDGMENT

1. The applicant is a citizen of Bosnia and Herzegovina. She arrived in Australia on 28 June 1996 on a visitor's visa. On 9 September 1998 Refugee Review Tribunal ("RRT") affirmed the decision of the Minister's delegate not to grant a protection visa to the applicant.

2. The present application seeks a review of that decision, on the grounds set out in the amended application.

Background

3. The applicant is a widow with four children. She has a son and a daughter who are residents of Australia, and two sons who are in Bosnia.

4. The applicant is of the Muslim faith. She lived in a house in Visoko, Sarajevo, Bosnia. In 1992 her house was attacked by Serbian forces whilst her sons were fighting for the Bosnian Army against the Serbian forces.

5. The applicant was caught up in the war in Bosnia until she escaped to Zagreb, Croatia in April 1994. From there she came to Australia at the invitation of her son and daughter who are living here.

Primary decision-maker

6. The Minister's delegate accepted that the applicant had a well-founded fear of persecution for reasons of her Muslim religion and her ethnicity (race/nationality) at the time she left Bosnia, but concluded, for reasons which he gave, that there had been a material change in the state of affairs in Bosnia in general, and Visoko in particular, such that the applicant's fear of persecution for a Convention reason on return to Bosnia is no longer well-founded. He also accepted that the applicant still bears the psychological scars of the horrific events to which she was subject during the war in Bosnia.

7. That decision was given on 27 March 1997, and of course, is not the decision under review. On 24 April 1997 the applicant wrote a letter to RRT which is not, perhaps, easy to understand in all respects. Whilst it does not specifically refer to the delegate's decision it is critical of it, especially in relation to the achievements of "so called peace keeping forces". I think that it is fair to say that the letter expanded on the applicant's claims or complaints, rather than reduced them.

RRT's decision

8. RRT recited the claims which the applicant made. That recitation included the following:

"She was subjected to fear of getting killed and persecuted. Many of her relatives were killed. Her sons were in the front line and she didn't know what was happening to them. During the day the fighting reduced but in the evening it became very severe. She was still running from house to house. Many of her neighbours were killed. She suffered mentally, physically and from hunger. For a week she didn't have anything to eat. At one stage she attempted to kill herself.

Armed groups have massacred defenceless women in their homes, or have brutally beaten and raped them. Scores of young women have been abducted and then raped. Some have committed suicide to avoid such a fate. Scores of women have disappeared. She was traumatized by the horrific abuses she witnessed.

...

Her house has been raided and bombed by rockets. Her sons were scattered in Bosnia in unknown places and she is not even sure if they are alive. She seeks protection as she deserves it and is a Muslim woman. Her town has been occupied by the Serbian forces who are Orthodox. They wouldn't like her because of her name and she would be mistreated if she were to return home. Her sons both, Edin and Munsur, fought in support of Bosnian army against Serbs and the Serbian invaders know that she will be persecuted if she were to return home because of her sons connection with Bosnian army.

The constitution has been suspended. Laws have become meaningless. The judicial structures have been destroyed. The central authorities have become virtually defunct. As a result, there has been little prospect of any of the perpetrators being brought to justice. Therefore she won't have any safety and protection in her city in Bosnia.

She still suffered from horrific nightmares and is still under treatment. ..."

9. RRT then recited statements made by the applicant at the hearing. RRT said:

"At hearing the applicant stated that she comes from Visoko, and were she to return to Bosnia she would go to Visoko. During the war she fled from Bosnia to Croatia and remained there until she came to Australia. She fears returning to Visoko due to her situation during the war, her fear of her own nation, lack of financial support or support services and her inability to obtain proper medical attention. She stated that if a person has money in Bosnia everything is available but if a person does not have money then that person will die. Both her sons have returned from the war and as their own home has been demolished. They live in a house which was originally owned by Serbs and which the neighbours allowed them to move into. They fear the return of that Serb family. Further they only receive 40 German marks per month on which to live. She fears her own nation as there are mixed marriages in her family and she has been verbally harassed by her close neighbours. Further she fears returning as her son who is in Australia did not serve in the war and she has been threatened because her son escaped from war service."

10. There is then a recitation of independent evidence which establishes that Visoko is overwhelmingly Muslim increasing from 14.5 percent in 1991, to a much larger percentage in 1996 (assuming that Bosniaks can be equated with Muslims) and which suggests that in 1996 and 1997 large numbers of refugees returned to the Federation Area of Bosnia-Herzegovina.

RRT's conclusion

11. RRT accepted that the applicant fears return to Bosnia/Visoko due to her war experiences and the current economic situation in Bosnia.

12. RRT made no specific finding in relation to the claims referred to in par 8 above. Unlike the Minister's delegate, RRT made no specific finding as to whether the applicant had a well-founded fear of persecution for reasons of race, religion or nationality at the time she left Bosnia.

13. Nor did RRT engage in any analysis of the extent to which circumstances had changed in Bosnia. The only finding which it made in this respect is as follows:

"Independent evidence (cited above) indicates that Visoko is currently part of the Bosnian Federation and has been since the 1991 census a majority ethnic Muslim town. That percentage has increased with the arrival of displaced Bosniaks to the area."

14. RRT did not accept the applicant's claim that "she fears returning to Visoko as she fears her own people due to her family's mixed marriage relatives and her son's leaving Bosnia for Australia without taking part in the war". In its context, this is probably a finding that fears which the applicant claimed in this respect were not well-founded.

15. RRT did accept that the applicant would experience difficulty in her day-to-day living in Visoko, but pointed out that persons whose sole reason for migration is the desire to leave generalised, difficult economic conditions, or to achieve a better economic standard of living "are not ordinarily entitled to the protection of the Convention".

Whilst this is a correct statement of the legal position, it is not a correct characterisation of the claims made by the applicant as to why she fled from Bosnia in 1994. See par 8 above.

The application for review

16. Counsel for the applicant relied on the following statement by Gaudron J in Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 at 415:

"The definition of `refugee' looks to the mental and emotional state of the applicant as well as to the objective facts. It is a commonplace, encapsulated in the expression `once bitten, twice shy', that circumstances which are insufficient to engender fear may also be insufficient to allay a fear grounded in past experience. Although the definition requires that there be `well-founded fear' at the time of determination it would be to ignore the nature of fear and to ignore ordinary human experience to evaluate a fear as well-founded or otherwise without due regard being had to the applicant's own past experiences.

If an applicant relies on his past experiences it is, in my view, incumbent on a decision-maker to evaluate whether those experiences produced a well-founded fear of being persecuted. If they did, then a continuing fear ought to be accepted as well-founded unless it is at least possible to say that the fear of a reasonable person in the position of the claimant would be allayed by knowledge of subsequent changes in the country of nationality. To require more of an applicant for refugee status would, I think, be at odds with the humanitarian purpose of the Convention and at odds with generally accepted views as to its application to persons who have suffered persecution ..."

See also per Mason CJ at 169 CLR 390-1, per Dawson J at 169 CLR 399, per Toohey J at 169 CLR 408 and per McHugh J at 169 CLR 432-3.

17. He submitted that, except in the respect indicated above, RRT does not say that it rejected claims which the applicant made, with the result that it must have implicitly accepted that the applicant fled Bosnia because she was personally caught up in and scared by a conflict in which her country was torn apart by ethnic division. There was no evidence, so the submission went, apart from generalised non-specific evidence about population movements in 1996, to show that what must have been a well-founded fear in 1994, was without objective foundation in 1998.

18. Counsel for the respondent submitted that it followed from the letter of 24 April 1997 (wrongly referred to by RRT as being dated 11 June 1997) that the applicant's subjective fears were no longer grounded in her wartime experiences, but in a lack of money, and a fear of all that this carried with it, and a fear of her countrymen based on her son's failure to fight. RRT considered and rejected this submission. Amongst the problems with this submission, is that this is not the way in which RRT characterised the applicant's complaints. See par 8 above.

19. Accordingly, in the applicant's submission:

RRT misapplied the concept of "well-founded fear of persecution" in finding that the applicant did not have such a fear.

There was a failure to follow proper procedures.

RRT had no evidence on which to base the decision.

Decision

20. The complaint of a failure to follow proper procedures was not the subject of elaboration in submissions and I am not aware of any foundation for it. The "no evidence" submission is based on s 476(1)(g) of the Migration Act 1958 and is subject to s 476(4).

21. In the circumstances of the present case, s 476(4)(a) has no relevant application. Section 476(4)(b) of the Act applies only to a case when the decision is based "on the existence of a particular fact" which does not exist. The finding sought to be impugned was the ultimate conclusion reached by RRT namely, that it is not satisfied that the applicant has a well-founded fear of persecution based on a Convention reason. This was not a particular fact the existence of which provided the basis for the RRT's decision. It was a conclusion as to future possibilities: see Xiang Sheng Li v Refugee Review Tribunal (1996) 45 ALD 193 at 204; Velmir v Minister for Immigration & Multicultural Affairs (unreported, Emmett J, 9 July 1998); Chen v Minister for Immigration & Multicultural Affairs (1999) FCA 34. The submission based on s 476(1)(g) therefore fails.

22. The Tribunal does not have to uncritically accept the applicant's claims: Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 at 451. Evidence rebutting an applicant's claims need not necessarily exist before a decision-maker can hold that a particular factual assertion is not made out: Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347, 348.

A well-founded fear?

23. RRT said:

"Fourth, an applicant's fear of persecution for a Convention reason must be a `well-founded' fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a `well-founded fear' of persecution under the Convention if they have genuine fear founded upon a `real chance' of persecution for a Convention stipulated reason. A fear is well-founded where there is a real substantial basis for it but not if it is merely assumed or if it is mere speculation. A `real chance' is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 percent."

I am unable to detect any error in this formulation of the concept of a "well-founded fear" of persecution. Nor can I conclude that RRT wrongly applied the test which it formulated for itself.

24. Whilst acknowledging that the proper approach to the consideration of decisions of an administrative character is as laid down by the High Court in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 , the difficulty which I have with RRT's decision is that whilst claims are recited, they are not specifically dealt with, and I am left with a feeling of uncertainty as to whether RRT has truly assessed whether or not the applicant fled Bosnia because of a fear of persecution which was then well-founded, and if so, whether circumstances had so changed to alter this. The judgments in Chan, referred to above, suggest that this is the proper approach; see also Yesus v Minister for Immigration & Ethnic Affairs (1996) 45 ALD 277. This uncertainty ought not to arise if RRT properly complied with the provisions of s 430(1).

25. In Thevendram v Minister for Immigration & Multicultural Affairs (1999) FCA 182 the Full Court emphasised the importance which attaches to RRT having regard to all the material and evidence before it, and making findings on all the material questions of fact raised by that material and evidence.

26. In Rajadurai v Minister for Immigration & Multicultural Affairs (1999) FCA 125 Sackville J held that it was not encumbent on RRT to make a specific finding as to an applicant's subjective fear of persecution where RRT found that the applicant did not have a well-founded fear of persecution. His Honour reviewed the authorities on s 430 in Anjum v Minister for Immigration & Multicultural Affairs (unreported, Sackville J, 17 December 1998), and reiterated what he described as the well-established principle of restraint.

27. In a case such as the present, in my opinion, it was incumbent upon RRT to form, and to express an opinion as to whether the past experiences on which the applicant relied produced a well-founded fear of being persecuted for a Convention reason, and if so to form and to express an opinion as to whether circumstances had so changed as to make that fear, if still held at the time of hearing, no longer well-founded. In other words, the issues raised by Gaudron J in Chan needed to be squarely addressed.

28. RRT failed to do so, and thereby failed to comply with s 430, thus enlivening the jurisdiction of the Court under s 476(1)(a). The amended application only raises s 430 in an oblique manner. But I think that the issue was debated in oral submissions, although it was the applicant's principal contention that there was an entitlement to review under s 476(1)(e). The factors relied upon in support of that contention throw up the same issue.

29. The decision of RRT should be set aside; the matter remitted to RRT for determination according to law; the respondent should pay the applicant's costs of the application.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Associate:

Dated: 24 March 1999

Counsel for the Applicant: Mr C Jackson

Counsel for the Respondent: Mr T Reilly

Solicitor for the Respondent: Mr A Pearson, Australian Government Solicitor

Date of Hearing: 12 March 1999

Date of Judgment: 24 March 1999