AZAAB v Minister for Immigration
[2008] FMCA 1380
•8 October 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| AZAAB v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1380 |
| MIGRATION – Judicial review of Refugee Review Tribunal decision affirming decision not to grant the applicant a protection visa – alleged jurisdictional error by the Tribunal – applicant claimed conscientious objection to military service – relevant principles – application dismissed. |
| Migration Act 1958 (Cth), ss.360, 425, 474 & 476 |
| Craig v South Australia (1995) 184 CLR 163 Slavko Percerep v Minister for Immigration Multicultural Affairs [1998] FCA 1088 Mijoljevic v Minister for Immigration & Multicultural Affairs [1999] FCA 834 Erduran v Minister for Immigration and Multicultural Affairs [2002] FCA 814 Appellant S395/2002 v The Minister for Immigration and Multicultural Affairs (2004) 216 CLR 473 Chey v Minister for Immigration and Citizenship [2007] FCA 871 NAQF v Minister for Immigration for Immigration and Multicultural and Indigenous [2003] FCA 781 |
| Applicant: | AZAAB |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | ADG 350 of 2007 |
| Judgment of: | Lindsay FM |
| Hearing date: | 22 August 2008 |
| Date of Last Submission: | 22 August 2008 |
| Delivered at: | Adelaide |
| Delivered on: | 8 October 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Ower |
| Solicitors for the Applicant: | McDonald Steed McGrath |
| Counsel for the Respondents: | Mr D'Assumpcao |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Amended Application filed on 27 June 2008 do stand dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADG 350 of 2007
| AZAAB |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant in this case is a twenty-six year old citizen of Israel who entered Australia on a Tourist Visa in November 2005. In March 2007 she made an application for a Protection Visa. Her application was refused by a delegate of the Minister on 26 June 2007. She appealed to the Refugee Review Tribunal (“the Tribunal”). On 22 November 2007 the Tribunal affirmed the decision of the delegate.
She has appealed to this Court, pursuant to s.476 of the Migration Act 1958 (“the Act”) for a review of the Tribunal’s decision. The decision of the Tribunal is a privative clause decision under s.474 of the Act and therefore final and conclusive unless it can be demonstrated that the Tribunal’s decision is vitiated by jurisdictional error as that concept was explained by the High Court in case such as Craig v South Australia (1995) 184 CLR 163. In her written application for a Protection Visa (which was completed without the assistance of a migration agent), the applicant described her fears of living in relation to living in Israel. She described the experience of bombing and terror in Israel at the hands of Hezbollah and other enemies. She saw no prospect of the terror attacks ending. She mentioned in relation to her fears the fact that all females must serve in the Israeli Army. She noted that she must serve thirty days a year until the age of thirty-five and that she would probably be called up to serve “and it will be more risky for me if I have to take that call in this situation”. The delegate refused her application because she found that the applicant’s fears relate to the ongoing conflict situation in Israel and the requirement to undertake reservist military service and that that was not persecution for a Convention reason.
The applicant was also conducting her own affairs when she lodged her application before the Tribunal. She submitted a typed document which appears at pp.56-59 of the CB. That document, again, emphasised the deteriorating security situation in Israel and the ongoing danger from terrorists in every day life. She indicated her sympathy for both sides in the conflict. She noted that the city that she lived in Israel was the subject of much bombing during the recent Israeli/Lebanon conflict. She noted that it was likely that the Army would call her to serve her time with them and that this would increase her chances of being killed. She also mentioned some difficulties that were being experienced in Israel with allegations relating to bribery and corruption at governmental level.
She gave oral evidence at the hearing before the Tribunal. It is summarised at pp.75-76 of the CB and I have had the opportunity to read the transcript of those proceedings. Once again, her evidence concentrated upon the difficulties of living in Israel whilst it was subject to the risk of terror attacks. She was asked about her service in the Army. She said that she had served for one year and nine months full time and that she was still required to serve a number of days per year until the age of thirty-five. She noted that if she refused to serve she could be imprisoned. She was afraid to live in Israel because of the risk of being subject to a terror attack.
The information the Tribunal obtained in relation to military service in Israel confirmed what the applicant told the Tribunal that all Israeli citizens are liable for compulsory military service. It confirmed the length of time the applicant spent full time in the Army was the standard length of service for females. The Tribunal accepted, however, the applicant’s contention that she was still liable to serve in the Israeli Army in the future. The Tribunal found that the applicant’s fear of harm from terrorist attacks was not fear of persecution for a Convention reason. It also found that the law relating to compulsory military service did not provide the basis for a claim for persecution within the meaning of the Convention.
Mr Ower, for the applicant, sought to rely upon an Affidavit of the applicant sworn on 4 December 2008, that is, subsequent to the Tribunal handing down its decision. The application was opposed by Mr D’Assumpcao who appeared on behalf of the respondents. I received the Affidavit de bene esse. The Affidavit is filed in support of the second ground set forth in the Amended Application (in actual fact the third ground argued before me), which is that the applicant was denied proper opportunity to respond to the invitation to give evidence made pursuant to s.425 of the Act in that the Tribunal misled her or corralled her into concentrating on specific topics. I will discuss this ground in detail hereunder but I am satisfied that the Affidavit is relevant to the determination of that issue. It is not an Affidavit which seeks to ground a “fresh evidence” argument. It is relevant to one of the grounds advanced for jurisdictional error before me. There are numerous instances of Courts exercising the jurisdiction I am exercising in this case accepting evidence at the hearing, for a multiplicity of reasons (see by way of example Slavko Percerep v Minister for Immigration Multicultural Affairs [1998] FCA 1088 and the Full Court decision of Minister for Immigration and Multicultural Affairs and Indigenous Affairs v SCAR (2003) 128 FCR 553). Mr D’Assumpcao did not seek to cross examine the applicant if the Affidavit was admitted.
It was appropriate I receive the Affidavit in evidence and I rule accordingly.
The first ground relates to what is said is the Tribunal’s misstatement in its reasons of the law relating to conscientious objection to military service as a matter giving rise to fear for Convention related persecution. The Tribunal’s statement of the law is of short compass and appears at p.78 of the CB and is as follows:
The Tribunal notes that the enforcement of laws providing for compulsory military service (and for punishment of desertion or avoidance of such service) does not provide a basis for a claim of persecution within the meaning of the Convention: Mijoljevic v MIMA [1999] FCA 834. The Tribunal finds that in Israel the obligations to undertake military service generally amount to a non-discriminatory law of general application.
The first difficulty with that passage is that it is not a full account of what Branson J said in the Mijoljevic judgment (supra). In that case, Her Honour upheld the decision of the Refugee Review Tribunal affirming the decision of the delegate not to grant a Protection Visa to a Serbian of pacifist views. Her Honour said at [21]:
It may be that pacifist views which do not have a religious or political base, and which are not part of the belief system of a particular social group, are irrelevant to a claim to be entitled to a protection visa. However, it was not on this basis that the Tribunal found against the applicant so far as he claimed to be a conscientious objector. The Tribunal gave consideration to whether any harm that the applicant might suffer in Yugoslavia by reason of his pacifist views would amount to persecution.
Her Honour found at [23]:
In my view, the conclusion of the Tribunal that the applicant's pacifist views did not provide a basis upon which it could be satisfied that he was a person to whom Australia owes protection obligations under the Refugees Convention was open to it on the evidence and material before it.
And later, in the same paragraph:
This Court has on a number of occasions recognised that the enforcement of laws providing for compulsory military service, and for the punishment of those who avoid such service, will not ordinarily provide a basis for a claim of persecution within the meaning of the Refugees Convention … .
The word “ordinarily” in the last cited passage is an important qualification and has not made its way into the Tribunal’s summary of the law.
The law in relation to conscientious objection is a ground for Convention related persecution is more nuanced than the Tribunal appears to recognise. It is most usefully summarised in the decision of Gray J in Erduran v Minister for Immigration and Multicultural Affairs [2002] FCA 814, a case involving a Turkish citizen who did not want to return to Turkey where he would be obliged to undertake compulsory military service.
His Honour notes at [18]:
… Laws relating to compulsory military service for all men of a certain age are generally to be regarded as laws of general application. Liability to punishment under a law of general application does not ordinarily provide a foundation for a fear of persecution for a Convention reason. As the Tribunal said, if a law is applied in a discriminatory manner to persons within the protected categories, its application will amount to persecution for a Convention reason. Thus, if persons of a particular race, religion or political opinion are more likely to be punished, or if their punishment is likely to be of greater severity, than others to whom the law applies, this may amount to persecution of those within the group concerned.
And, later, at [28]:
… It may be that the conscientious objection is itself to be regarded as a form of political opinion. Even the absence of a political or religious basis for a conscientious objection to military service might not conclude the inquiry. The question would have to be asked whether conscientious objectors, or some particular class of them, could constitute a particular social group. If it be the case that a person will be punished for refusing to undergo compulsory military service by reason of conscientious objection stemming from political opinion or religious views, or that is itself political opinion, or that marks the person out as a member of a particular social group of conscientious objectors, it will not be difficult to find that the person is liable to be persecuted for a Convention reason. It is well-established that, even if a law is a law of general application, its impact on a person who possesses a Convention-related attribute can result in a real chance of persecution for a Convention reason. …
This error of law by the Tribunal, which seems manifest, amounts to jurisdictional error Mr Ower says in accordance with the analysis of the High Court in Appellant S395/2002 v The Minister for Immigration and Multicultural Affairs (2004) 216 CLR 473 and he relied particularly upon the judgment of McHugh and Kirby JJ at paras. [36] and [39] of that decision and their criticism of the way in which the Tribunal in that case had dealt with the issue of whether harm would befall homosexual persons in Bangladesh who did or did not act discreetly. In this analysis, it makes no difference whether or not the applicant was in fact claiming persecution on account of her status as a conscientious objector. The important point is that the Tribunal embarked upon a determination of that issue and got the law wrong. When it does so in that set of circumstances, it was put, the error becomes jurisdictional.
Importantly, however, the majority of the High Court in Appellant S395/2002 (supra) found that the way in which the Tribunal had embarked upon its own examination of the country information to discern what it thought was differing treatment of discreet and non discreet homosexual men resulted in the Tribunal failing to consider the real question that it had before it which was whether the applicants had a well founded fear of persecution on account of being homosexual. The task that the Tribunal “waded into”, to use Mr Ower’s expression, completely distorted the exercise which the Tribunal should have embarked upon in assessing the claim for persecution for a Convention related reason.
Here the Tribunal has made an error of law. But whether the error of law amounts to a jurisdictional error will be determined by a careful analysis of the applicant’s case and the way in which the Tribunal dealt with it.
The problem for the applicant in this case in relying upon this error of law as a jurisdictional error is that it is very difficult to discern at any stage of her application any intention by her to repudiate or refuse military service. True it is, that in her application she noted that if she returned to Israel “the Army will probably call me to serve my duty, and it will be more risky for me if I’ll have to take that call in this situation”. That is really the high water mark of the applicant’s case at any stage, whether before the delegate, the Tribunal or in this Court, in relation to her being a conscientious objector.
The overwhelming impression given by the applicant in her written submissions and oral evidence is of a person who is extremely fearful (understandably) of the risks presented by the ongoing terrorist threat in Israel and on account of the state of war or near war between Israel and its neighbours. The reference to military service is made in that context. It is a matter that aggravates her fears of returning to Israel. Not only will she be subject to all of the fears and risks experienced by the general population but she will have the additional and elevated harm that will arise from serving in the Army, even on the part time basis that is all that will be required of her to the age of thirty-five.
The Tribunal in the passage cited above has been summary in its analysis of the law relating to compulsory military service and consequently has not accurately stated the law. Compulsory miliary service in the context of conscientious objection which has a basis in religious or political views or membership of a social group may amount to persecution within the meaning of the Convention. But the Tribunal should surely not be criticised for carrying its analysis of the law to that level where it was on no notice that the applicant was advancing a claim for conscientious objection.
Mr D’Assumpcao properly emphasised the critical nature of the following passage from the decision of Gray J in Erduran (supra) at [28]:
It therefore appears that, when an issue of refusal to undergo compulsory military service arises, it is necessary to look further than the question whether the law relating to that military service is a law of general application. …
The issue of conscientious objection to military service will only arise if in the first instance there is evidence of a refusal to undertake military service. All the Tribunal ever had before it in relation to this applicant was a fear of military service which in itself was an extension or a continuation of the general fear she had in relation to returning to a society which was subject to internal and external threats.
At no stage does the applicant indicate that she will not perform miliary service although she says on more than one occasion that she is extremely fearful of performing military service.
At p.7 of the transcript the applicant tells the Tribunal that she is aware that if she does not serve out her military service she is liable to be imprisoned. It is not an enviable position to be in. Her alternatives will be serving in the Army and intensifying her fears of personal harm or going to gaol. There would be difficulties in characterising a decision not to serve in the Army on account of that fear as being one that is for a Convention related reason but the applicant’s case, in my view, does not even get to that nascent stage because there is no indication of her having formed an intention not to serve in the Army.
These same considerations, in my view, are determinative of the applicant’s second ground in relation to jurisdictional error. It is contended that there was material before the Tribunal which indicated that she did not want to return to Israel because she did not want to serve in the Army on account of conscientious objection either on the basis of political opinion or a more generalised opposition to war which in itself it is said could be construed as a political opinion.
Mr Ower relies upon the well known passage from the decision of the Full Court of the Federal Court in NABE v The Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2005) 144 FCR 1 at [63]:
… failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a … a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal. Every case must be considered according to its own circumstances. …
The Full Court notes at [58] that:
There is authority for the proposition that the Tribunal is not to limit its determination to the ‘case’ articulated by an applicant if evidence and material which it accepts raise a case not articulated … .
They go on in the same paragraph to say:
It has been suggested that the unarticulated claim must be raised ‘squarely’ on the material available … The use of the adverb ‘squarely’ does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.
Mr Ower carefully summarised for me the material available in the application, in the written statement to the Tribunal and in the applicant’s oral evidence which is capable of assisting the applicant in establishing some semblance of a claim for persecution on the basis of conscientious objection to military service. I have already referred to the fact that the applicant, on a number of occasions, acknowledges her liability for military service and the risk of imprisonment if she fails to serve. But all of these, in my view, are made in the context of her generalised fear of return to a society subject to indiscriminate terrorist attack. As far as any claim for political opinion is concerned the high water mark is an expression in the written material put to the Tribunal that she is against “this hole [sic] situation … I believe noone should die in this long war that just doesn’t stop since I remember myself …”. Considerable ingenuity and effort is required in my view, to construct from these raw materials any unarticulated claim for refugee status on the basis of a fear of persecution arising from a conscientious objection to military service.
Mr Ower went further and suggested that the way in which the Tribunal had conducted the oral hearing effectively precluded the applicant from pursuing her claim on the conscientious objection to military service platform.
He submitted that s.425 of the Act required the Tribunal to invite the applicant to appear before it to give evidence and present arguments and he referred to a number of authorities which demonstrate that s.425 requires an “in substance opportunity to give evidence and present arguments” (see Chey v Minister for Immigration and Citizenship [2007] FCA 871 at [24]). An evaluation of this argument required careful attention to the transcript of the proceedings before the Tribunal on 20 September 2007.
After dealing with formal information, the Tribunal commenced the essential enquiry on p.5 with the following open ended question:
As I said, there is not much information on this file. Tell me: Why do you think you are a refugee? Tell me slowly.
That invitation elicits a response which plainly demonstrates that the applicant’s primary concern is fear for her physical safety on account of terrorist acts in Israel. The applicant’s service in the Army is raised on p.6 by the Tribunal after having been initially raised by the applicant on the previous page. The Tribunal make the surely unexceptional remark that everyone is required to serve in the Army. The applicant provides details of her compulsory full time serve and then her required part time service to the age of thirty-five. She notes, on p.7:
And if I won’t go, so they just come and take me and put me in gaol or something like that.
True it is that the Tribunal responds with a more leading question in the following form:
Yes, I understand how it works. This applies to all Israeli citizens.
The discussion is then taken into the ways in which male and female Army service differs.
At the top of p.8 the Tribunal asks the applicant what she thinks is likely to happen to her if she returns to Israel and once again she squarely indicates that her principal concern is being blown up by a terrorist. That is the fear she has. She also indicates that:
And also the Army – it’s also arrest you to go back there and something can happen. You’re just frightened to go back there.
There then follows some questions from the Tribunal as to who it is that the applicant says is persecuting her. In evaluating the applicant’s answers it has to be borne in mind that she was not represented by a migration agent but the balance of the transcript of the evidence indicate plainly in my view that this is a young woman who is scared of being the victim of terrorist violence in Israel which will be accentuated if she were to serve in the Army and which is also aggravated by her knowledge that her failure to serve in the Army will carry with it the risk of her being imprisoned.
The applicant had every opportunity in my view to raise with the Tribunal any decision by her to refuse to perform military service on the part time basis required of her if she were to return but did not do so. She focussed instead on those matters which explained her fear to return to Israel and which focussed principally to fears for her physical safety given the terrorist threats to the country. It was not up to the Tribunal to suggest conscientious objection to the applicant to see what, if anything, it elicited. The Tribunal’s summary of the requirements of refugee status is brief but did not mislead the applicant. I am not satisfied there was a focus on particular issues which diverted or distracted the applicant’s attention from other possible aspects of her claim as was the case in Chey (supra). We are a very long way from the dissuasion or discouragement to pursue an aspect of the claim or a topic of evidence which concerned Lindgren J in the context of the Migration Review Tribunal’s analogues obligations pursuant to s.360 of the Act in NAQF v Minister for Immigration for Immigration and Multicultural and Indigenous [2003] FCA 781.
In her Affidavit the applicant says she was put off with the question which I referred to above (see [33]) as having introduced the essential task of the Tribunal. She says at para.14 of her Affidavit that:
I felt put off by this type of question. I felt the question was too big and that I needed the Tribunal member to ask me more specific questions about my situation.
From a complaint about the breadth of the question the applicant then moves to a complaint the Tribunal member being too directive in relation to the questioning thereafter. In the Affidavit at para.17 the applicant confirms what was implicit in the material before the Tribunal that she did not want to serve in the Army again, a reluctance to serve, which in the face of the elevated dangers arising from military service to a person already apprehensive about the risks in civil society generally, is hardly surprising but is far removed from an objection or refusal to serve.
The assertions in the Affidavit in my view do not materially advance the applicant’s case in relation to the s.425 ground which was the ground that it sought to advance. I have concentrated upon the transcript of the hearing but, of course, that formed only one part of the material before the Tribunal. There was the application and there was the written statement made at the time of the institution of the proceedings before the Tribunal to be taken into account. Nowhere in that material, in my view, does the applicant even essay, let alone raise squarely, a claim for refugee status upon the basis of conscientious objection relating to political opinion (or other fear of persecution, whether on account of religion or membership of a social group).
There being no demonstration of jurisdictional error in the way the Tribunal went about its task the application will be refused.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Lindsay FM
Associate: Ms N. Julius
Date: 8 October 2008
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