Kesic v Minister for Immigration & Multicultural Affairs [2001] FCA 130 (27 February 2001)

Last Updated: 27 February 2001

FEDERAL COURT OF AUSTRALIA

Kesic v Minister for Immigration & Multicultural Affairs [2001] FCA 130

IMMIGRATION - refugees - whether Refugee Review Tribunal failed to consider the motivation for the applicant's conscription - whether Tribunal should have considered persecution by reason of membership of a particular social group.

Migration Act 1958 (Cth), s 476(1)(e).

Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19; (2000) 170 ALR 553, cited.

Minister for Immigration and Ethnic Affairs v Respondent A (1995) 57 FCR 309, cited.

Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4; (1997) 190 CLR 225, cited.

Lama v Minister for Immigration and Multicultural Affairs [1999] FCA 1620 (FC), cited.

Minister for Immigration and Multicultural Affairs v Zamora (1998) 85 FCR 458, cited.

MILAN KESIC v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1283 OF 2000

SACKVILLE J

SYDNEY

27 FEBRUARY 2001

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1283 OF 2000

BETWEEN:	MILAN KESIC APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	SACKVILLE J
DATE OF ORDER:	27 FEBRUARY 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the respondent's costs.

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	N 1283 OF 2000

BETWEEN:	MILAN KESIC APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	SACKVILLE J
DATE:	27 FEBRUARY 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE PROCEEDINGS

1 By an amended application filed in court, the applicant seeks review of a decision of the Refugee Review Tribunal ("RRT") made on 16 November 2000. The RRT affirmed a decision of a delegate of the respondent ("the Minister") not to grant the applicant a protection visa.

2 The amended application raises two grounds of review, as follows:

"1. The RRT failed to consider that the police and/or the SPS [the Socialist Party of former President Milosevic of Yugoslavia] may have been motivated by persecutory reasons in respect of the summons for military service served upon the applicant.

2. The RRT failed to consider that the applicant had a well-founded fear of persecution by reason of his membership of a social group being a group comprising persons associated with the SPS and the Milosevic regime."

Each is said to constitute an error of law and thus give rise to the ground of review provided by s 476(1)(e) of the Migration Act 1958 (Cth) ("Migration Act").

3 The meaning of the expression "persecutory reasons" in ground 1 is not clear. I infer from the submissions of Mr Killalea, who appeared for the applicant, that ground 1 is intended to suggest that the RRT failed to consider whether the police were motivated by the applicant's imputed political opinion, when they summonsed him to perform compulsory military service during the war in Kosovo.

4 Mr Killalea acknowledged that the applicant, who was represented in proceedings before the RRT and whose solicitor prepared a written submission on his behalf after the hearing, had never suggested that he feared persecution by reason of his membership of a particular social group. He submitted that the RRT should nonetheless have considered the question. In the course of argument, Mr Killalea offered an alternative definition of the "particular social group" of which the applicant was a member than that referred to in ground 2 of the amended notice of appeal. The alternative was as follows:

"persons who were known by the police to have been employees of Marko Milosevic, the son of former President Milosevic of Yugoslavia."

BACKGROUND

5 The applicant is an unmarried, forty year old Serbian, born and raised in a town just outside Belgrade. He left Yugoslavia in late October 1999, and arrived in Australia on 4 December 1999, as a stowaway on a ship. On 13 December 1999, he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs. On 17 February 2000, a delegate of the Minister refused to grant a protection visa. On 28 February 2000, the applicant sought review of that decision by the RRT. As already noted, the RRT affirmed the delegate's decision on 16 November 2000.

6 The applicant's principal claim before the RRT was that he feared persecution in Serbia by reason of his imputed political opinion. Specifically, he said that he feared harm because he had worked for a time for Marko Milosevic, President Milosevic's son, and had threatened opposition politicians who would now form part of the new government in Yugoslavia. Among his other claims, he said that he feared imprisonment because he had deserted the Serbian army in Kosovo.

7 The RRT accepted the applicant's account of events. It found that he had performed some jobs for President Milosevic's Socialist Party (the SPS) in 1994-1995. On his own account, his association with the SPS was not inspired by any ideological commitment, but by a "self protective desire to seem to be `a good Serb'".

8 The applicant entered the service of Marko Milosevic in the summer of 1998. Marko Milosevic engaged in serious criminal activities, but also owned a number of businesses. The applicant was employed in a night club, performing legitimate tasks but also assisting in unlawful jobs, such as "standing over" people, when told to do so.

9 The RRT accepted that the applicant would have had some personal contact with Marko Milosevic, but rejected any implication that he was "close" to Marko Milosevic in a manner suggesting personal friendship or the sharing of views. This conclusion was supported by the fact that the applicant had been employed only for a period of three or four months, and occupied only a subordinate position. The RRT was satisfied that "any observer would accept the applicant merely as an employee of Marko".

10 In November 1998, the applicant had an argument with Marko Milosevic and thereafter was never again employed by him.

11 In April 1999, the applicant was bashed by three men. The RRT was unable to determine the identity of the assailants or why they attacked the applicant. It found that the attack was not serious enough to be called persecution, since the applicant neither sought medical attention nor reported the attack to the authorities. The RRT was also satisfied that the motive was retribution for one reason or another (to avenge the insult to Marko Milosevic or to avenge harm that had been perpetrated by the applicant), and that the assault had not been for any Convention reason. The RRT concluded that the attack had been

"a random or non-selective incident; that is,...people who had a grudge against the applicant just happened to see him at a moment when it was dark and he was alone".

12 The RRT found that, in consequence of this attack, the applicant came in contact with the police and was served with a summons for military service. According to the RRT, this summons may have been prompted by the police themselves or by an official of the SPS.

"In any case, it was not unlawful and there is nothing to suggest that this law was persecutory or applied to the applicant in a discriminatory way. All able-bodied Serbs remain on the military reserve after completion of their mandatory national service and can be recalled to duty once or twice a year for training or operational purposes." (Emphasis supplied.)

13 The RRT also accepted that the applicant had been sent on military duties to Kosovo and had deserted within a short period of time. He remained in Serbia until August 1999, keeping out of the way of the authorities. He then travelled across the Balkans and into Italy, departing from Genoa as a stowaway.

THE TRIBUNAL'S REASONS

14 The RRT found that the applicant had failed to establish any Convention nexus for any harm he had suffered or feared for the future. The April 1999 bashing did not constitute persecution and was not for a Convention reason.

15 The RRT considered that the harm feared by the applicant by reason of his association with Marko Milosevic could come from a variety of sources. Since the applicant would be seen only as an employee of Marko Milosevic, rather than a confidante or partner, he would be regarded as a person who carried out orders, not as someone who was acting independently or acting in pursuit of a political or ideological goal. It followed that if anyone wished to exact revenge on the applicant, it would be in response to some adverse action of his, not because of some political or ideological view imputed to him by virtue of his association with Marko Milosevic or other members of the SPS.

16 The RRT then pointed out that, in any event, the situation had changed substantially in Yugoslavia since the applicant's arrival in Australia. President Milosevic had been toppled from power. A new president had been sworn in. Marko Milosevic had fled from Yugoslavia in October 2000. There had been some backlash against Marko Milosevic and his business establishments, but the damages had been limited, in part because the members of the new president's party had prevented further damage from occurring. With one exception, there had been no reports of any harm occurring to any of his employees. The single exception was an attack on a security guard at Marko Milosevic's theme park, "Bambi Land", which occurred prior to the new president taking up his position.

17 The applicant's claim to fear imprisonment for reasons of desertion also lacked a Convention nexus. He was on military service as required by the laws of his country: he made no claim to be a conscientious objector. The RRT was satisfied that the current Yugoslav government was committed to the rule of law. In the unlikely event of the applicant ever being charged with desertion, the RRT considered that he would receive a fair trial. It noted that the law against desertion was one of general application and that there was nothing to suggest that the Yugoslav government would enforce it in a discriminatory fashion.

18 The RRT concluded that the applicant had not suffered harm, let alone harm amounting to persecution, in the past for a Convention reason. It was satisfied that the chance that such harm would befall him in the reasonably foreseeable future was remote. It followed that he did not have a well-founded fear of persecution for a Convention reason.

THE FIRST GROUND

19 Mr Killalea contended that the RRT had failed to consider whether the conduct of the police, in serving a summons for military service on the applicant, had been motivated by his imputed political profile.

20 The principal difficulty with this submission is that the RRT did address the reasons for the applicant's conscription into the Serbian army. It found that the service of the summons by the police was not unlawful and that there was nothing to suggest that the law itself was persecutory or applied to the applicant in a discriminatory way. The RRT, in making these findings, doubtless had in mind the principle that the enforcement of a law of general application, unless it is applied in a discriminatory way, does not constitute persecution or persecution for any of the Convention reasons: see Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19; (2000) 170 ALR 553, at 558-559, per Gleeson CJ, Gaudron, Gummow and Hayne JJ; cf Minister for Immigration and Ethnic Affairs v Respondent A (1995) 57 FCR 309, at 319, cited with approval in Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4; (1997) 190 CLR 225, at 245, per Dawson J; Lama v Minister for Immigration and Multicultural Affairs [1999] FCA 1620 (FC), at [10]. In any event, the RRT specifically found that the law of general application had not been applied in a manner that discriminated against the applicant. This finding clearly implies that the RRT considered that the conscription of the applicant was not by reason of the applicant's membership of the SPS or his association with Marko Milosevic.

21 It is hardly surprising that the RRT reached this conclusion. As Mr Lloyd, who appeared for the Minister, pointed out, the applicant never suggested to the RRT that the reason, or one of the reasons, for his conscription was his imputed political opinion or his association with Marko Milosevic. In particular, the written submissions prepared by the appellant's solicitor after the RRT hearing (in accordance with an opportunity provided by the RRT) made no such suggestion.

22 This ground must be rejected.

THE SECOND GROUND

23 Mr Killalea's second submission was even more elusive than the first, not least because at various times he advanced two quite differing versions of the "particular social group" of which he suggested the applicant was a member.

24 Mr Killalea did not refer to any authorities on the question of what constitutes a "particular social group" for the purposes of Article 1A(2) of the Convention. Perhaps for this reason, he did not address the fundamental question of whether either of the groups he identified is capable of constituting a "particular social group" for the purposes of the Convention. In Minister for Immigration and Multicultural Affairs v Zamora (1998) 85 FCR 458, at 464, the Full Court summarised the effect of the authorities as follows:

"To determine that a particular social group exists, the putative group must be shown to have the following features. First, there must be some characteristic other than persecution or the fear of persecution that unites the collection of individuals; persecution or fear of it cannot be a defining feature of the group. Second, that characteristic must set the group apart, as a social group, from the rest of the community. Third, there must be recognition within the society that the collection of individuals is a group that is set apart from the rest of the community."

25 It is difficult to understand how a group as broad as "persons associated with the SPS and the Milosevic regime" could satisfy those criteria. I did not understand Mr Killalea to persist with the submission that it could.

26 It is equally difficult to understand how Mr Killalea's alternative foundation of

"persons who were known by the police to have been employees of Marko Milosevic"

could satisfy the criteria identified by the Full Court in Zamora. Any group defined by reference to what the police know of their characteristics would hardly seem to have a characteristic that sets the group apart, as a social group, from the rest of the community. Nor is any such group likely to be recognised within society as a group set apart from the rest of the community.

27 Be that as it may, Mr Killalea could not point to any findings by the RRT, or any material before it, that would have supported the factual findings necessary to establish that the applicant was a member of the particular social group comprising persons known by the police to have been employees of Marko Milosevic. In the absence of such material, the RRT can hardly be criticised for not addressing the issue identified by Mr Killalea.

28 In any event, the RRT made findings inconsistent with the contention by the applicant that he had a well-founded fear of persecution by reason of the membership of the "employees" group. The RRT found that there had been no reports of harm to any of Marko Milosevic's employees, the only exception being an incident that occurred prior to the new president taking up office. The RRT also specifically found that

"the applicant would be seen as a mere employee of Marko Milosevic; and if anyone wished to exact revenge on him it would be in response to some action committed by him." (emphasis added.)

These findings are inconsistent with the applicant having a well-founded fear of being persecuted by reason of his having once been an employee of Marko Milosevic. According to the RRT's findings, if the applicant had a fear of harm it would flow from his own actions and not from his membership of a group comprising former employees of Marko Milosevic.

29 The applicant's second contention must also be rejected.

CONCLUSION

30 The application for review of the RRT's decision must be dismissed, with costs.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice SACKVILLE.

Associate:

Dated: 27 February 2001.

Counsel for the Applicant: Mr R Killalea

Solicitor for the Applicant: Low & Associates

Counsel for the Respondent: Mr S Lloyd

Solicitor for the Respondent: Blake Dawson Waldron

Date of Hearing: 21 February 2001

Date of Judgment: 27 February 2001