Krstevski v Minister for Immigration & Multicultural Affairs [1999] FCA 599 (4 May 1999)

Last Updated: 27 May 1999

FEDERAL COURT OF AUSTRALIA

Krstevski v Minister for Immigration & Multicultural Affairs [1999] FCA 599

LJUBOMIR KRSTEVSKI AND MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N5 OF 1999

THE HON JUSTICE MARCUS EINFELD AO

SYDNEY

4 MAY 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N5 OF 1999

BETWEEN:	LJUBOMIR KRSTEVSKI Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	THE HON JUSTICE MARCUS EINFELD AO
DATE:	4 MAY 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an application for review of a decision of the Refugee Review Tribunal made on 11 December 1998. The circumstances of the case arouse significant sympathy and dilemmas. The applicant is a citizen of the former Yugoslav republic of Macedonia. He arrived in Australia on 10 May 1996 and a little over fourteen months later, lodged an application for asylum. The delegate of the Minister refused the application on 22 August and on 18 September 1997, the applicant sought a review by the Tribunal. The court is now asked to review the decision of the Tribunal given 14 months later.

2 The applicant's claim is that he is facing persecution upon his return to Macedonia because he is an Orthodox Macedonian of mixed parentage or heritage, being of Serbian, Romanian and Macedonian ethnicity. He supports the concept of a reunited Yugoslavia and does not favour a separate Macedonian state unconnected to Serbia. The problem is that the Macedonian state has only a small Macedonian majority, there being also significant minorities consisting of various different groups, some Orthodox and some Moslem. The Orthodox population consists of Macedonians, Serbs and Bulgarians, while the Moslem group consists of Albanians, Turks and Slavs from Macedonia, Serbia and other places. There is no doubt that Macedonia is facing serious economic difficulties and is a poor country.

3 There are great pressures within Macedonia due to the fact that the Republic of Macedonia is actually only a small part of the whole area claimed to be Macedonia in history. Most of it is in Greece and some of it is in Bulgaria. There are powerful pressures within Macedonia to link, and even merge, with Bulgaria. There are other pressures for a similar link or merger with Serbia, and of course there are Albanian people who view Macedonia as a place which ought to be linked in some way with their country. Macedonia, accordingly, is a microcosm of the problems in The Balkans which are causing such hardship and agony at the present time, but which have had a long history of difficulty going back several centuries. Part of the claim made by Mr Krstevski commences with the fact that his father, more than 30 years ago, changed his name from Krstic, a Serb name, to Krstevski, a Macedonian name, in order to try to ensure that he would have work in Macedonia and that he and his family not be discriminated against.

4 The applicant himself has been at first a follower, then a member and then a significant propagandist, of the Democratic Party of Serbs in Macedonia. This body's leader used to be in the Macedonian Parliament, but because of what has been described to the Court as a transmigration policy pursued by the Macedonian authorities, the former Serb majority in his constituency was significantly dissipated so that he was defeated for Parliament and has subsequently been imprisoned, as Mr Krstevski says, for no reason other than his political beliefs. Mr Krstevski therefore says that, as a significant and well-known figure in the Democratic Party of Serbs in Macedonia, he would be likely to suffer a similar fate were he returned to Macedonia.

5 He also claims that he has been discriminated in his employment. Material has been placed before the Court - I am not entirely sure whether it was before the Tribunal - which indicated that in 1994 he was employed as an accounts officer with a public enterprise in Skopje, but that in 1995 his position was changed within the same enterprise to a storeman with a significant loss of income. The applicant says that this change in position took place because of his ethnic background, political beliefs, or both, and was an act of significant discrimination. He can produce no evidence about it in the traditional sense, but then it is very unlikely that any overt evidence would ever be available to support the assertion.

6 His assertion to the Tribunal was that the person who replaced him in the accounts department was much less qualified than him. He told the Tribunal that he was surrounded by people who did not like his political affiliations and that some Macedonians, and I am not entirely sure whether they were fellow employees, attacked him physically and threatened him with death. The Tribunal quite fairly accepted the majority of his assertions, and certainly accepted the major allegations which he made. The Tribunal appears to have accepted that he was transferred in employment and that it was very possible that his employment was changed because of his political beliefs or ethnic background or both. The Tribunal appears to have also accepted that he was a significant figure in the Democratic Party of Serbs and that he suffered or was liable to suffer significant discrimination, even persecution, on that account.

7 The applicant's wife and daughter have remained in Macedonia whilst he has been in Australia. They live in what has been described as a two-storey house with his mother and father and with his brothers and brothers' families. Four families are said to live in the house. Although there seems to be no evidence suggesting that the life and security of any of these people are under threat in terms of active interference with their peace and serenity, the applicant claims that his family, like many others of their ethnic background, live in constant fear of either being moved or shot and that they have no future in the country because there is no or very little work available for anybody. He says that what work there is goes by priority and preference to people who are Macedonian or sympathisers of the ruling majority.

8 Evidence was placed before the Tribunal of some recent elections, and the Tribunal quite possibly misinterpreted, in a small way, some of the results of those elections. There seems no doubt that recent elections in Macedonia were carried out in a reasonably democratic way in the sense that they were multi-party elections on general franchise and that there is room in the Parliament for opposition parties. It may very well be that the election results are in a sense manufactured in that they do not precisely reflect the voting patterns of the whole population, at least in the division of seats that ultimately are taken up in the Parliament by the members of the various parties. But gerrymandering is not a problem unique to Macedonia. Moreover, electoral systems often produce unfair results. Britain has for a long time, for example, had a major third party which records very substantial votes in terms of numbers but is never able to make a major impact in terms of seats in the House of Commons. To a lesser extent, the same problem periodically arises in this country, as it does in other election systems. So the failures or weaknesses of electoral systems by themselves do not create out of an ostensible parliamentary democracy something that is close to an authoritarian regime. In any event, failures of an electoral system could hardly be a cause for declaring someone to be a refugee, or it would have the result that all people in unrepresented or under-represented parties would qualify for that definition.

9 Macedonia does have other features of democratic societies. The judiciary is generally seen to be independent. The security apparatus and the police are apparently independent and responsible to Parliament through the relevant ministry and are overseen by a public body. Local government exists and there are other forms of transparency in operations which suggest that the people of Macedonia are at least able to have their views presented in public and to some extent responded to by authority. There are rights to form trade unions and trade unions do exist, and there are provisions for investigating and monitoring human rights violations. Of course none of this means that the country does not suffer from a number of difficulties often arising out of economic hardship.

10 The application to this Court was filed by the applicant himself, although the English in which it is expressed suggests that he was provided with some assistance. Mr Krstevski has appeared here with the assistance of an Immigration translator, Mrs Majstorovic, who has been helpful to the Court in elucidating the claims which Mr Krstevski wants to make. Although his English is not perfect, it was perfectly adequate for him to present his case as fully as it could be presented.

11 His application raises really only two significant issues in relation to the decision of the Tribunal. One is that the material which he presented to the Tribunal was not given sufficient weight. I have said that it is possibly true that the particulars related to the election result were dealt with by the Tribunal in a fairly formal way, without perhaps as deep an analysis as Mr Krstevski would have liked into what the result meant for policies in the country towards minorities. That possible criticism notwithstanding, I can see no relevant error of law which was committed by the Tribunal in that respect. As I pointed out during argument, the election result and any misunderstanding about its meaning was really quite incidental to the decision that was made and could have been entirely omitted without doing anything to invalidate the determinations on the claims being made.

12 A second criticism was that the Tribunal did not obtain independent evidence about the governing party's program and policy towards minorities and towards priority and preferential employment opportunities for people in the majority culture. The people of the Balkans are, as a general run, much more conscious, for understandable historical reasons, of cultural and ethnic differences than are people of other cultures where the problem, whilst it exists, is not nearly as stark and not nearly as dangerous as it has proved to be in the Balkans over many centuries. As a consequence, it will very rarely be that a person who is not of one of the Balkan cultures will ever state or narrate the cultural import of events taking place in that region satisfactorily for people who come from that region. The Tribunal is not bound to use its judgment for the purpose of discussing the whole cultural and ethnic history and problems of the Balkan region. It is sufficient if it addresses the claims and, in a reasonably comprehensive fashion, deals with them. I think the Tribunal performed that task in this case perfectly satisfactorily.

13 Some material was placed before the Tribunal that the applicant had been seeing a clinical psychologist about his stresses as a consequence of the events which have been taking place in Skopje and his situation there. That report has been translated by Mrs Majstorovic for the Court, as it was for the Tribunal. It was a report written not long before Mr Krstevski left for Australia. It states that he has been referred by his general practitioner to the psychologist because of increased tension, difficulty in sleeping, anxiety, diminished appetite, and depressive disposition. The psychologist reported that his psychological condition was connected with what she described as "disturbed social contacts at his workplace and living environment." She said that as a consequence he often came into conflict with the environment due to the current political situation in his country following the disintegration of the former Yugoslavia, as well as the economic crisis in Macedonia itself. The clinical psychologist found on examination that the applicant had what was called a "lack of spontaneity in communication", that he was of a "depressive disposition", and that he was suffering "increased anxiety" due to or arising in circumstances where he is "describing actual contacts with people from his environment who do not understand him, and by whom he feels rejected." The conclusion was that he was suffering from an anxiety depressive syndrome, and the Tribunal appears to have accepted that evidence.

14 The problem is, as the Tribunal identified, and as I underline and uphold, that although these matters are all very understandable, and although the Australian people, as well as its authorities, would undoubtedly be sympathetic to Mr Krstevski and others in his situation, the facts accepted by the Tribunal -- and I emphasise that almost all the facts alleged by Mr Krstevski were accepted -- do not constitute him as a person who comes within the definition of refugee in the Geneva Convention on Refugees which applies in Australia.

15 The Tribunal found that Mr Krstevski holds genuine fears that the current war over Kosovo will spill over into Macedonia. As the Tribunal concluded, this occurrence is certainly quite within the bounds of reasonable even imminent possibility. To some extent the situation has already escalated over the border in that very large numbers of Albanian speaking refugees from Kosovo are now in Macedonia. Because of the economic, and perhaps the ethnic and political situation in their country, the Macedonian authorities have an increasingly difficult task in handling this refugee influx, such that the earlier decision that none of the people should be brought to Australia from that region has now had to be reversed because of the difficulties under which the refugees were living in Macedonia.

16 The Tribunal accepted that the applicant has suffered stress and that he is extremely anxious and concerned by the situation in and around Macedonia. The Tribunal accepted that he is an advocate for a return to a union with Serbia, and that he is undoubtedly concerned about the real possibility that he will be unable to get meaningful employment upon his return to Macedonia. Mr Krstevski told me as well that he does not want to accept the social welfare handouts of the Australian people and Government and that he would like to establish a small factory here and work for his living and contribute to the Australian economy.

17 I do not doubt his sincerity in that respect, or that if permitted to stay here he would in fact act in a determined and independent way towards that end. Whatever that conclusion might do to permit him to migrate to Australia, it does not figure in an application for asylum. It certainly seems a particularly harsh time to return Mr Krstevski to Macedonia, although it must be said that the situation is unlikely to improve in his country in the short to medium term. The war over Kosovo may well carry on for many months, even years, and even if the actual fighting and bombing stops, there will have to be a major reconstruction effort, internationally conducted and funded, to rebuild Kosovo before the refugees will have any chance of being able to go back. Until then the stresses in Macedonia will continue such as will undoubtedly impinge further onto the Macedonian economy. As a consequence, Macedonian residents will undoubtedly continue to suffer significant economic hardship.

18 Sympathetic though we must all be to that situation, especially at this particularly difficult time, there is no basis upon which the Court can find that the Tribunal erred in a relevant legal sense in its determination that the applicant does not have a Convention-based fear of persecution. I can find no error, either of law or fact, which the Tribunal has made. It appears to have handled this particular matter with significant competence and completeness.

19 For that reason the appeal will be dismissed. I do recommend that the Department consider carefully whether it is necessary to deport Mr Krstevski immediately, and whether arrangements might not be able to be made for him to stay a little longer at least until the situation in the region settles down a little.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marcus Einfeld AO.

Associate:

Dated: 4 May 1999

The applicant appeared in person
Counsel for the Respondent:	Miss R. M. Henderson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	4 May 1999
Date of Judgment:	4 May 1999