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SZNDD v Minister for Immigration & Anor [2009] FMCA 179 (11 March 2009)

Last Updated: 12 March 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNDD v MINISTER FOR IMMIGRATION & ANOR

MIGRATION – Review of Refugee Review Tribunal decision – Tribunal not required to refer to every piece of evidence – no obligation on Tribunal to seek further information – applicant seeking impermissible merits review – no fraud of legal representatives – choice and weight of country information a matter for Tribunal – no obligation on Tribunal to investigate the status of applicant’s application for citizenship in another country – no jurisdictional error – application dismissed.


WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184
W389/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 432
NAYU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 300
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6
SZFDE v Minister for Immigration and Citizenship [2007] HCA 35
NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10
Applicant NABD of 2002 v Minister for Immigration & Multicultural Affairs [2005] HCA 29
NBKT v Minister for Immigration & Multicultural Affairs [2006] FCAFC 195
SCAA v Minster for Immigration Multicultural and Indigenous Affairs [2002] FCA 668
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28
Minister for Immigration Multicultural Affairs v Jia (2001) 205 CLR 157
SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361
Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431
VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30

Applicant:
SZNDD

First Respondent:
MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:
REFUGEE REVIEW TRIBUNAL

File Number:
SYG 33 of 2009

Judgment of:
Nicholls FM

Hearing date:
5 March 2009

Date of Last Submission:
5 March 2009

Delivered at:
Sydney

Delivered on:
11 March 2009

REPRESENTATION

Counsel for the Applicant:
In person

Solicitors for the Applicant:
In person

Counsel for the Respondents:
Mr T Reilly

Solicitors for the Respondents:
DLA Phillips Fox

ORDERS

(1) The application made on 7 January 2009 is dismissed.
(2) The applicant pay the first respondent’s costs set in the amount of $5,200.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 33 of 2009

SZNDD

Applicant


And


MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent


REASONS FOR JUDGMENT

  1. This is an application made under the Migration Act 1958 (Cth) (“the Act”) on 7 January 2009, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 19 December 2008 which affirmed the decision of a delegate of the respondent Minister to refuse the grant of a protection visa to the applicant.

Background

  1. The first respondent has put a bundle of relevant documents before the Court in this matter (the Court Book (“CB”)) from which the following background may be discerned.
  2. The applicant was ultimately found by the Tribunal to be a citizen of Montenegro. He arrived in Australia on 24 July 2008, and applied for a protection visa on 11 August 2008. (See CB 2 to CB 51). This application was refused by a delegate of the respondent Minister on 22 September 2008 (CB 72 to CB 80). On 26 September 2008 the applicant applied to the Tribunal for review of that decision. (CB 81 to CB 87).

The Applicant’s Claims to Protection

  1. The applicant claimed to fear harm in Montenegro from “Albanian” extremists because of his ethnicity as a Montenegrin (more widely as a non-Albanian), because of the perception that he was of the Orthodox religious faith and, further, a fear of being persecuted by Montenegrins because of his having lived in Serbia and, therefore, being regarded as a “traitor”. He also claimed to fear persecution by Serbians because of his ethnicity as a Montenegrin.
  2. The applicant also claimed to fear persecution on the basis of imputed political opinion as a Communist (arising out of his family’s connection to former President Tito), because of his actual lack of a political persuasion, because of his political opinion in favour of Kosovo independence and the arrest of Radovan Karadzic, because he is related to Prime Minister Djukanovic, and because of his atheism.
  3. In his protection visa application the applicant also claimed to have been a citizen of a Serbia and to fear harm if were to return to Serbia because of his Montenegrin background.

The Tribunal

  1. The applicant appeared before the Tribunal on two occasions – 31 October 2008 and 16 December 2008 where he gave evidence in support of his claims. The applicant was also given the opportunity to comment in writing on a number of occasions:
    1. Letter from the Tribunal to the applicant dated 1 October 2008, seeking comments on certain information (CB 97). This letter also provided the opportunity for the applicant to provide certain additional information.
    2. The applicant’s response dated 3 October 2008 with annexures (CB 105 to CB 114), letter dated 29 October 2008, which included a statutory declaration (CB 133 to CB 139), and a further letter dated 29 October 2008 also with annexures (CB 140 to CB 152).
    3. The Tribunal wrote to the applicant on 4 November 2008, after the first hearing, referring to certain particulars provided to the applicant orally at the hearing and sought the applicant’s comments (CB 156 to CB 167).
    4. In an additional letter also dated 4 November 2008 the Tribunal invited the applicant to comment on, or respond in writing to, certain information that it said would be the reason or part of the reason for affirming the decision under review (CB 169 to CB 172).
    5. The applicant provided the following responses and comments to the Tribunal:

The Tribunal’s Findings

  1. The Tribunal accepted that the applicant was a Montenegrin citizen, as he had claimed. It found that he did not have the citizenship of any other country (although it accepted that he had applied for Serbian citizenship).
  2. In view of this, the Tribunal assessed the applicant’s claims as they related to Montenegro (CB 362.4).
  3. The Tribunal found that the applicant’s claims were: “broad-ranging and sometimes overlapping” (CB 362.5), and it expressed: “some general concerns about the quality and reliability of these claims”. In all, it: “formed the impression that the applicant presented claims that were sometimes exaggerated, misconstrued or otherwise unreliable, and that they therefore require careful scrutiny” (CB 362.8).
  4. The Tribunal found that the applicant’s travel history, particularly in the period during 1993, and 1997 to 1998, where despite opportunity, the applicant failed to apply for refugee protection, and further, his failure to leave Montenegro until six months after being issued with a passport, raised doubt about the truth of his claims to fear persecution in Montenegro (see CB 363.4 to CB 364.7).
  5. The Tribunal considered various aspects of the applicant’s claims to fear persecutory harm on the ground of political opinion, both actual and imputed. Taking into consideration the applicant’s evidence and submissions, and independent country information available to it, the Tribunal found that it was not satisfied that the applicant had a well-founded fear of persecution by reason of his expressing a moderate political opinion, or that he would be imputed with any political opinion due to certain family links. The Tribunal found that these claims were exaggerated as to their significance and consequences (CB 365.4).
  6. Further, the Tribunal found that there was no independent information to support the applicant’s claim that he would be at risk of persecution in Montenegro because he had been a long-term resident of Serbia (CB 365). In this regard, the Tribunal accepted the applicant’s evidence that there had been an incident in December 2007 in Montenegro after he had returned from Serbia, which occurred in the applicant’s tattoo parlour (where he had been attacked by a client), but did not accept that what had occurred in this incident was Convention-related harm (CB 366.6).
  7. The Tribunal rejected the applicant’s claims to fear persecution from “Albanians” in Montenegro on the grounds of his race and, to the extent that this claim was said to overlap with his religion (Serbian or Montegrin Orthodox Church). The Tribunal found that the applicant’s claims were: “in stark contrast with country information that indicates that the Albanian population is a small minority in Montenegro” (CB 367.3), and that this minority did not have influence that represented a threat to the Montenegrin majority.
  8. The Tribunal gave reasons for rejecting the applicant’s claim that “Albanians” attacked him and his friends in February 2008 because they were speaking Montenegrin (367.7 to 368.3). The Tribunal also rejected the applicant’s claims that he had been assaulted by Albanian and Serbian soldiers whilst in the military, which differed “radically from reliable independent information from a range of reliable sources” (CB 368.5).
  9. In all, the Tribunal did not accept that a Montenegrin returning to Montenegro faced a real chance of harm: “let alone persecution – for reason of his or her race, from Albanians, Serbians or any other minority that country” (CB 368.8).
  10. The Tribunal accepted the applicant’s evidence that he was not religious and that he considered himself an atheist. It noted independent country information that indicated that the majority of the population in Montenegro was Orthodox Christian, and that less than 5% declare themselves to have no religion. However, the Tribunal found that independent country information did not support the applicant’s claims that non-religious persons would be at risk of persecution because of their non-membership of any church (CB 369.2), and it further rejected the applicant’s claims that he would be targeted in Montenegro because people would mistakenly perceive him to be an Orthodox Christian (369.4).
  11. In all, the Tribunal concluded that the applicant had never experienced Convention-related harm in Montenegro in the past, and that there was not a real chance that he would do so in the future (see in particular CB 369). For this reason, the Tribunal affirmed the decision under review.

Application to the Court

  1. In his application made on 7 January 2009, the applicant put forward the following grounds:

[Errors in original]

  1. Attached to this application was a document headed: “NOTES CONCERNING GROUNDS OF APPLICATION”. This five page narrative, for the most part, challenges the Tribunal’s factual findings and conclusions. The following additional complaints may be discerned:
    1. The Tribunal relied on “old information”, and a challenge to the Tribunal’s choice of the country information on which it relied.
    2. The Tribunal was wrong to say “that there was no evidence” to support the applicant’s claims.
    3. He complains about his legal advisers who assisted him both before the Minister’s delegate and before the Tribunal.
    4. The Tribunal’s decision was “pre- based” on the delegate’s decision.
  2. Also before the Court was the first respondent’s response filed on 19 January 2009 and written submissions drafted by Counsel and filed on 3 March 2009.

Hearing before the Court

  1. At the hearing before the Court the applicant appeared in person. Although an interpreter in the Serbian language was present, the applicant displayed a very good command of the English language and did not need to rely on the interpreter. Mr T Reilly of Counsel appeared before the first respondent.

Adjournment Application

  1. At the beginning of the hearing the applicant sought an adjournment to enable him, he said, to obtain legal representation. The applicant submitted that on receipt of the Court Book he consulted a lawyer on the panel of the Court’s legal advice scheme, and that since that time, he had only had about one week to arrange representation. The applicant submitted that he was in immigration detention and had arranged with a friend (it subsequently turned out that it was the friend’s mother) to approach “several barristers” to see if he could obtain legal representation. He explained that he was not in a financial position to pay for such assistance. Further, the applicant expected the mother of his friend to be present in Court on the day of the hearing. Initially, he was unable to explain her absence.
  2. Mr Reilly objected to the granting of any adjournment. He submitted that as the applicant had made his application on 7 January 2009, following the handing down of the Tribunal’s decision on 19 December 2008 (the applicant was legally represented at that time), that in these circumstances the applicant had had ample opportunity to have arranged legal representation.
  3. I adjourned for a short period to enable both the applicant and the Minister’s solicitors to contact this friend (or her mother) with a view to ascertaining exactly what steps had been taken to obtain legal representation for the applicant.
  4. On resumption, both parties confirmed that the friend’s mother intended to “take the Court Book to some barristers”. The applicant submitted that there was no particular barrister in mind, and confirmed that no action in this regard had been taken to date. He also confirmed that the friend’s mother had meant to attend Court to assist the applicant (presumably in obtaining the adjournment), but had gone to the wrong court room.
  5. In all the circumstances, I was not persuaded that it was appropriate in this case to grant the applicant any adjournment. The applicant attended the first Court date in this matter in person on 4 February 2009. While not requiring the services of an interpreter in the Serbian language at that time, nonetheless an interpreter was present. Amongst other matters, his application was set down for final hearing on 5 March 2009. The applicant has had at least one month from that time to arrange legal representation. (I also agreed with Mr Reilly that there was still nothing to stop the applicant from taking steps to arrange legal representation prior to that time, at least as from the date of the making of his application to this Court on 7 January 2009)
  6. Further, and importantly, there was nothing in what the applicant put to the Court to show that the applicant’s friend’s mother had taken any tangible steps to arrange such representation on the applicant’s behalf, even in the week available to her after his having consulted the panel lawyer. Nor could it be said that the situation was any higher than the applicant “hoped” to obtain such representation. Noting, of course, that the applicant was in receipt of some legal advice from a lawyer on the panel of the Court’s and legal advice scheme (relevant documents on the Court file reveal that the applicant met with this lawyer on 25 February 2009 and that written advice was subsequently provided on 27 February 2009).
  7. The applicant comes from a non-English speaking background. He was held in immigration detention at the relevant times. However, given his command of English, his demonstrated capacity to use contacts outside the detention centre and the Court’s observation of the applicant before it as an articulate (even in English – not his first tongue) and intelligent person, I did not see the fact of his detention by the immigration authorities as explaining the failure to take tangible steps to arrange representation prior to the hearing. [Noting also his complaint in his written narrative – see pages 2 and 3 – as to the length of time his application for a protection visa and review has taken – “six months spent on my case” – while he remained in detention.]
  8. Nor, also importantly, did the applicant seek any adjournment now for the purpose of the friend’s mother attending Court to further assist him in making his application for an adjournment.
  9. In all the circumstances, I agreed with Mr Reilly that the applicant has had a reasonable opportunity to obtain legal representation (or to have taken tangible steps to make these arrangements) and in all the circumstances I was not satisfied, even if any adjournment was granted, that the applicant would obtain such assistance. Noting in addition that this was not a situation where the applicant had not had the benefit of any legal advice whatsoever.

Ground 1 – Failure to Consider Further Evidence

  1. The first ground in the application asserts error on the part of the Tribunal for failing to consider “further evidence” which was “critical information.”
  2. No particulars are provided in support of this ground. Nor was it clear from the applicant’s written narrative as to what exactly was meant by this complaint.
  3. If he is alleging that the Tribunal did not consider evidence put forward by him, I note that the obligation on the Tribunal in conducting the review is, of course, to consider each claim and each integer of the claims made by an applicant. Plainly, in setting out its reasons for its decision the Tribunal is not required to refer to every piece of evidence before it (WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 at [47]).
  4. If, on the other hand, the applicant’s complaint is that the Tribunal should have sought out further, or additional, information, the relevant statutory scheme (see in particular s.424 of the Act) does not mandate an obligation on the Tribunal to seek further information, or for that matter, to make further investigation.
  5. In this regard, while it may be said that there is a duty to enquire in some circumstances (see, for example, W389/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 432), in the absence of any such particular reason, as in this case, there is no general obligation for the Tribunal to make further enquiries (see, for example, VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459 at [27], WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 277 at [24]–[25], and NAYU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 300 at [18]–[21]).
  6. In the absence of particularity, this ground does not succeed.

Ground 2 – Jurisdictional Error

  1. The application provides no particularity whatsoever as to what jurisdictional errors the Tribunal is said to have made. Nor does the applicant’s attached narrative provide any direct assistance in this regard. For the most part, the applicant’s complaint appears to be that the Tribunal made findings adverse to him, and that he disagrees with such findings.
  2. In my view it is, as Mr Reilly submitted, that the Tribunal’s findings, and conclusions drawn from these findings, were factual findings that were open to the Tribunal to make for the reasons that it gave. In this regard, the applicant’s complaints do not amount to anything above a request for impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259).

Ground 3 – “Failed” by legal representatives.


  1. The applicant submitted, both in writing and before the Court, that he was “failed” by his legal representatives, both before the Minister’s delegate and subsequently before the Tribunal. In the narrative attached to the application the applicant complains that his first legal representative did not provide him with any advice, and that she engaged law students to undertake research. His complaint about the second legal representative was that he did not assist him and left him feeling “alone” in the conduct of his case. In particular, he complains that he had to provide “all the information” to the Tribunal himself.
  2. Whatever the applicant’s complaints about his legal representatives before the Tribunal (and, for the most part, these appear to be complaints of negligence or neglect), I cannot see that on the material before the Court that the conduct complained of would amount to fraud (or even anything close to fraud) on the part of those providing assistance to the applicant, such that the Tribunal’s processes were vitiated, and such that it could be said, therefore, that jurisdictional error existed (bearing in mind what was said by the High Court in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35).
  3. There may be other avenues for the applicant to consider in pursuing this complaint, but I cannot see that it assists him before the Court now.

“Ground 4” – Country Information

  1. In the attached narrative and in his oral submissions before the Court the applicant also complains as to the Tribunal’s choice of country information upon which it relied, and that the information that the Tribunal relied upon in important circumstances was “old”.
  2. In making its decision the Tribunal did rely on a range of country information in addressing each integer of the applicant’s claims. The applicant complains in his narrative that the Tribunal relied on information that was “old” (dating back to 2003 or 2004). There is no particularity in the reference to those years.
  3. However, any plain reading of the Tribunal’s decision record reveals that the Tribunal accessed relevant websites in compiling the range of independent information to which it had regard and that these websites were accessed at different times during 2008 (see, in particular, CB 354.9 to CB 362.1).
  4. But even if what the Tribunal accessed in 2008 could be said, in part, to refer back to 2003/2004, the applicant’s complaint does not reveal jurisdictional error on the part of the Tribunal.
  5. First, the applicant was given every opportunity, both at the hearing and in writing, to address relevant country information before the Tribunal. In particular, I note that the Tribunal wrote to the applicant pursuant to s.424A of the Act: “inviting the applicant’s comments or responses to country information relating to particular individuals” (CB 350.7, and see, in particular, CB 97 to CB 99, CB 156 to CB 161, and CB 320 to CB 323).
  6. The applicant’s responses are summarised by the Tribunal in its decision record (CB 350.8 to CB 352.5).
  7. Before the Court the applicant also complained that the Tribunal did not accept the information that he had provided in response but used “old” information. In particular, he complained that the “evidences” that he provided (for example, in relation to the power of Albanians in Montenegro) were not appreciated by the Tribunal or were “underestimated”.
  8. It is, however, as Mr Reilly submits, that the choice and interpretation of country information is a factual matter for the Tribunal (NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10 at [11] – [13], Applicant NABD of 2002 v Minister for Immigration & Multicultural Affairs [2005] HCA 29; (2005) 216 ALR 1 at [8] per Gleeson CJ, NBKT v Minister for Immigration & Multicultural Affairs [2006] FCAFC 195; (2006) 156 FCR 419 (FC) at [81] – [84]). That the Tribunal preferred some information, or gave greater weight to information, or (particularly relevant to the complaint regarding the power of Albanians), gave greater weight to its own research over that country information provided by the applicant, does not reveal error on the part of the Tribunal.
  9. For the applicant’s benefit, I note that even if some small error could be found in the Tribunal’s finding as to the percentage of Albanians in Montenegro (nor is it apparent, and in any event, there is no dispute that they are not in the majority in Monetengro) there is, as Mr Reilly submits, no error of law in the Tribunal making such a wrong finding of fact (see Abebe v The Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at [137]).
  10. The applicant also generally complains that the Tribunal based its decision on information found on “the web”. He also complains that the Tribunal said that there was “no evidence” in support of some of these claims after in fact finding evidence which supported or confirmed his claims. The applicant’s complaints in this regard appear to challenge the Tribunal’s use of country information and its subsequent findings in relation to:
    1. The applicant’s claimed fears arising from actual and imputed political opinion in Montenegro.
    2. The level of ethnic tension in Montenegro such that the applicant faced harm.
    3. Fear from Albanians in Montenegro because of his race and perceived religion.
  11. The Tribunal dealt with each of these matters, and the evidence before it, as follows:
    1. It found that, on the evidence before it, the political debate in Montenegro could be heated, even in some circumstances leading to clashes:
      • “However, independent information does not support the applicant’s claim that he faces a real chance of political persecution for the mere fact of having a moderate political opinion or for voicing this ...” (CB 365.3).
    2. On the issue of former residents of Serbia and political opinion in Montenegro and ethnic tensions, the Tribunal found:
      • “However, for the reasons stated previously, the totality of the evidence does not support a conclusion that ethnic tensions are such that individual members of the communities face a real chance of persecution on any Convention ground, without more.” (CB 366.1)
    3. In relation to fear from Albanians in Montenegro on the grounds of race:
      • “The Tribunal finds this claim to be in stark contrast with country information that indicates that the Albanian population is a small minority in Montenegro; that this minority does not have influence or impunity such that it represents a threat to the Montenegrin majority; and that, by way of contrast, some observers have concerns about its treatment.” (CB 367.3)
    4. In relation to religion specifically, the Tribunal referred to country information (CB 368.8) and stated:
      • “These reports suggest that some religious groups, particularly within the Serbian Orthodox Church, are assertive. However, this is a far cry from the suggestion that non-religious persons are at risk of persecution from religious groups or others because of their non-membership of any church. Country information does not support this, and the Tribunal is confident that the persecution of agnostics or atheists, it (seek – if) it occurred, would attract attention” (CB 369.1).
  12. Each of these findings were open to the Tribunal in what was before it. Moreover, the Tribunal’s analysis reveals a cogent and logical analysis. In this regard, the Tribunal’s findings were not arbitrary. It gave clear reasons for the view that it took of the country information and its application to the applicant’s circumstances.
  13. The applicant’s complaints in this regard fail. Ultimately, the choice and use of country information is for the Tribunal. This Court cannot interfere and impose its own view. In all the circumstances, the applicant’s complaints, in essence, do not rise above a request for impermissible merits review.
  14. The applicant also complains that the Tribunal made findings that there was no evidence to support certain aspects of his claims. I understood the applicant to complain, for example, about the Tribunal’s various findings that independent country information did not support some assertions made by the applicant (see, for example, CB 365.3, 367.4, 369.2), which on any plain reading of the Tribunal’s decision record amounts to no more than a complaint about the Tribunal’s choice of country information and the interpretation and use that the Tribunal made of this information. This complaint also does not succeed.

“Ground 5” – “Pre- Based” Conclusions

  1. The applicant also complains that the Tribunal did not make its decision based: “solely on his conclusions”, and with regard to: “new evidences” but rather that it “pre- based” its views on the delegate’s “empty” and “contradictory conclusion and decision”. I took this to be a complaint that the Tribunal did not come to the review with an open mind but that it sought to follow the delegate’s decision. In other words, it could be said that the Tribunal was biased, or that an apprehension of bias could be discerned, or even that it acted in bad faith.
  2. If this is the case, then such complaints, as is often said, are serious and require evidence for them to be made out. Beyond assertion, the applicant has not provided any evidence to support his claims in this regard. Noting, of course, that it is only in exceptional circumstances that bias can be made out only having regard to the Tribunal’s decision record (SCAA v Minster for Immigration Multicultural and Indigenous Affairs [2002] FCA 668 at [38]).
  3. Having regard to relevant authorities in relation to these matters (Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28, Minister for Immigration Multicultural Affairs v Jia (2001) 205 CLR 157, SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361 at [43]- [44], Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431, VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102), I cannot see that any such complaint can be made out on the material before the Court.

“Ground 6” – Tribunal Distorted Evidence

  1. The applicant also complains in his narrative attached to the application that the Tribunal “distorted” the evidence before it. He appears to argue that on what was before it the Tribunal had sufficient evidence to make findings favourable to him. If this is in addition to the complaint immediately above, a complaint that the Tribunal’s decision was illogical (“... hilariously hypocritical decision ... that has nothing to do with real facts”, “Unbelievable” – page 5 of his narrative) then, even putting to one side the extent to which illogicality is available as a ground of review (Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165), I cannot see that the Tribunal’s analysis was illogical or “unbelievable”. In fact, in my view, any plain reading of the Tribunal’s decision reveals a measured and cogent analysis of each of the applicant’s claims, the circumstances put forward in relation to those claims, and the information available to the Tribunal. This complaint also does not succeed.

“Ground 7” - Failure to Assess Claims

  1. Before the Court, the applicant also complained that the Tribunal did not assess his claims to fear harm if he were to return to Serbia. I understood the applicant’s complaint to be that he had applied for Serbian citizenship, and was not aware that the Tribunal would not search for “details” in relation to this application, such as to then go on and consider his claims to fear harm if he were to return to Serbia.
  2. The applicant initially claimed to have both Montenegrin and Serbian citizenship (see CB 14.5 and also CB 33.3 – the applicant’s statement attached his protection visa application: “I am a citizen of both Serbia and Montenegro”).
  3. The Tribunal’s account of what occurred at the hearings before it remains unchallenged by any evidence to the contrary. The Tribunal records that at the hearing of 31 October 2008:
  4. Contrary to the applicant’s complaint now, the Tribunal did make enquiry and did consider the issue of the applicant’s citizenship in relation to possible Serbian citizenship:
  5. The Tribunal also considered whether the applicant was in fact stateless. But it ultimately found that the applicant was a Montenegrin citizen (and not stateless). Specifically, in relation to the applicant’s complaint, it stated:
  6. Following this the Tribunal concluded that the applicant was not stateless, that he was a citizen of Montenegro only and that his application for Serbian citizenship (which it accepted he had made) remained unresolved as at the time of its decision.
  7. The applicant’s complaint now appears to be that the Tribunal did not search for, or make enquiries in relation to, the resolution of his Serbian citizenship application.
  8. I cannot see in the circumstances that it was for the Tribunal to make enquiries of the Serbian authorities as to whether or not the applicant had been granted Serbian citizenship. The Tribunal proceeded in this regard on the information provided by the applicant himself, that is, that he had applied for such citizenship (the Tribunal accepted this). In this regard, the Tribunal noted that independent country information supported the applicant’s claims (CB 362.3).
  9. The Tribunal provided an opportunity to the applicant of a second hearing, specifically to address the issue of his citizenship. It was plainly open to the Tribunal to proceed on what had been put before it. Namely, that the applicant was a Montenegrin citizen, and that the issue of his Serbian application for citizenship remained unresolved. The country information before the Tribunal was that the basis for the applicant being granted Serbian citizenship was still subject to bilateral negotiations between former Yugoslav republics. In the absence of any evidence to the contrary, I cannot see error with the Tribunal’s conclusion:
  10. In any event, it was always open to the applicant to have made further enquiries at the Serbian authorities himself as to the progress of his application, particularly as the Tribunal specifically raised the issue of his citizenship with him. As the applicant applied for citizenship, he was presumably best placed to make such an enquiry
  11. Nor does the applicant even now assert that he has been granted Serbian citizenship. In all the circumstances, there is no error in the Tribunal proceeding to consider the applicant’s claims to fear persecution as it related to Montenegro only. This complaint also does not succeed.

Conclusion

  1. For the applicant to succeed the Court would need to find jurisdictional error in the Tribunal’s decision. I cannot discern such error. The Tribunal provided a number of opportunities for the applicant to address issues of concern, both in writing and at two separate occasions for hearing. In my view, the Tribunal’s analysis was comprehensive and the findings were open to it on the material that was before it. I cannot discern jurisdictional error as asserted by the applicant now, or otherwise. On this basis, the application is dismissed.

I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Nicholls FM


Associate: C Darcy


Date: 11 March 2009

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