CDF17 v Minister for Immigration

[2017] FCCA 3147

FEDERAL CIRCUIT COURT OF AUSTRALIA

CDF17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3147

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection visa – it was open for the Tribunal to make a finding in relation to the Ukraine law on the consequences of draft evader or desertion being a law of general application – the findings by the Tribunal in respect of those who engage in draft evasion and the limited nature of the punishment imposed was open – jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 476

Applicant: CDF17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1533 of 2017

Judgment of: Judge Street

Hearing date: 13 December 2017

Date of Last Submission: 13 December 2017

Delivered at: Sydney

Delivered on: 13 December 2017

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Mr J Pinder
Minter Ellison Lawyers

ORDERS

1. The application is dismissed.

2. The applicant to pay the first respondent’s costs fixed in the amount of $5,600.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1533 of 2017

CDF17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision the Administrative Appeals Tribunal (“the Tribunal”) made on 11 May 2017 affirming a decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be a citizen of Ukraine, and his claims were assessed against that country. The applicant arrived in Australia on 21 November 2013 as the holder of a Special Program (Class TE) (Subclass 416) visa which was valid until 27 November 2014. On 16 May 2014, the sponsor withdrew support for the applicant’s Special Program visa. On 13 May 2014, the applicant lodged an application for protection that was found to be invalid. The applicant lodged a valid application for protection on 4 June 2014.

3. On 22 May 2015, the delegate found the applicant failed to meet the criteria for the grant of a protection visa under the Act. The applicant claimed to fear harm in the Ukraine because he had been conscripted to the Nation Gvardy (the army). The applicant claimed his parents told him he had received mobilisation orders and that he would not comply because he is opposed to fighting against his fellow Ukrainians. The applicant further claimed that he was excluded from national service in about 2012 because of a dental defect. The applicant claimed he had nothing against military service, but felt that the current conflict in the Ukraine was created by politicians who were motivated by money. The applicant further claimed that his brother had been called up for a conscription in May 2014 but had fled to the USA.

The Tribunal’s decision

1. Following the adverse decision of the delegate, the applicant applied to the Tribunal for review on 25 June 2015. The applicant was invited by letter dated 7 December 2016 to attend a hearing on 16 February 2017. The applicant appeared on that date to give evidence and present arguments.

2. The Tribunal in its reasons dated 11 May 2017, identified the background to the application for review. The Tribunal set out the relevant law in Annexure A incorporated into the reasons of the Tribunal. The Tribunal identified the applicant’s claims and evidence. The applicant claimed that in summary, he does not want to kill people. The Tribunal identified when discussing with the applicant the conscription law in the Ukraine, that it is a law of general application and that the punishment is not discriminatory and that draft evasion and desertion are criminal offences punishable by law, but that in practice, the Courts issue fines and suspended sentences in most cases.

3. The Tribunal accepted that the applicant did not engage in national service, obtaining an exemption on medical grounds. The Tribunal found the applicant did not suffer any Convention related harm in the Ukraine prior to his arrival in Australia. The applicant confirmed that he was not conscripted when he was in the Ukraine and had not received any notice since being in Australia. The Tribunal rejected the applicant’s claim made to the Department that since arriving in Australia, he has been conscripted into the Nation Gvardy (the army).

4. The Tribunal noted that the applicant stated that he does not object going in to the army, but objects to killing people. The Tribunal referred to a decree reinstating military service made on 1 May 2014. The Tribunal noted that there was no evidence to suggest the Ukraine government views a person’s refusal to participate in military service as an act of political opposition.

5. The Tribunal made reference to the applicant having turned 30 and not being eligible for conscription. The Tribunal referred to the fact that the applicant has not served in the military and is not a reservist, but acknowledged that fighting in the Ukraine had not yet ceased. The Tribunal was satisfied as the applicant does not meet the categories for an exemption from military service, there is a real chance the applicant will be served with mobilisation orders on his return to the Ukraine.

6. The Tribunal acknowledged there is no civilian alternative to military service and that there are penalties for draft evasion in the Ukraine. The Tribunal noted the applicant does not claim to be eligible for any categories of exemption. The Tribunal acknowledged that draft evasion and desertion are criminal offences and punishable by law. The Tribunal identified that whilst punishment could be up to three years’ imprisonment, the Courts issue fines or suspended sentences in most cases. The Tribunal found that country evidence supports that the penalties are neither disproportionate nor excessive. The Tribunal found that in the majority of cases, persons were immediately released on probation.

7. The Tribunal noted that persons targeted for mobilisation included persons with past relevant experience. The Tribunal referred to the conscription law and found that it was appropriate and adapted to achieving a legitimate object of protecting the security and safety of the Ukraine and its population.

8. The Tribunal found the laws governing conscription and mobilisation in the Ukraine are laws of general application, they are appropriate and adapted to achieving a legitimate national object of protecting the security and safety of the Ukraine and its population. The Tribunal found no evidence to support the conditions of military service would be so harsh as to amount to persecution and found the applicant does not have a well-founded fear of persecution by reason of being required to serve in the military.

9. The Tribunal noted that the applicant does not claim that he is or will be considered to be a draft evader by the Ukrainian authorities and that the applicant stated he would go into the army. The Tribunal found the remote possibility that the applicant would be imprisoned and/or fined for this reason on his return to Ukraine and that the applicant would not suffer serious or substantial harm in the Ukraine as a draft evader.

10. The Tribunal noted the applicant has not claimed and that there is no evidence to suggest that he has ever publicly voiced his opinions about completing military service or publicly identified himself as a conscientious objector. The Tribunal was not satisfied the applicant is a conscientious objector to military service, as the applicant has stated he does not object to going into the army. The Tribunal was not satisfied the applicant has a conscientious objection either to all forms of military service or to mandatory military service in the Ukraine.

11. As the applicant had stated that he would go into the army, the Tribunal rejected the applicant’s claim that he feared being drafted into the army and being sent to the front. The Tribunal found the applicant, on return to Ukraine, if required to do so, would complete military service. The Tribunal found on return to the Ukraine, the applicant would not express an opinion or act in such in a way as to cause him to be imputed with an opinion that is opposed to compulsory military service or to the military more generally. The Tribunal did not accept the applicant would seek to evade military service if he returns to Ukraine or that he would resist or speak out against conscription for any reason.

12. The Tribunal did not accept the applicant has a well-founded fear of persecution because he is a conscientious objector. The Tribunal found the applicant did not face a real risk of serious harm or significant harm by reason of being a conscientious objector. The Tribunal found the applicant, if required, will complete his military service and will do so in compliance with the Ukranian law. The Tribunal was not satisfied the applicant faced a real chance that he will be prosecuted, penalised, fined, imprisoned or otherwise abused, mistreated or harmed on the basis of being a conscientious objector or for being a draft evader or deserter. The Tribunal found remote the risk that the applicant will suffer significant harm if he were to be mobilised and required to complete his military service.

13. The Tribunal found the applicant’s chance of being mobilised are not remote and did not accept that the applicant is a genuine conscientious objector or that he was, is or will be considered to be a draft evader by the Ukrainian authorities. The Tribunal rejected the applicant’s claim that he will be harmed for these reasons. The Tribunal found that as a result of a law of general application, the applicant has military service obligations in the Ukraine and found that he will not seek to evade conscription or resist or object to the requirement to complete military service or mobilisation.

14. The Tribunal was not satisfied there is a real chance that the applicant will face serious harm at the hands of authorities or any other persons or group for reasons of his religion, actual or imputed political opinion, his membership of a particular social group of conscientious objectors or for any other reason if he returns to Ukraine. It was in these circumstances the Tribunal found there is not a real chance that the applicant will be subject to serious harm for one or more of the reasons set out in the Refugees Convention or for any other reason if he returns to Ukraine now or in the reasonably foreseeable future. The Tribunal found the applicant did not meet the criteria under s 36(2)(a) of the Act.

15. The Tribunal did not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Ukraine, that there is a real risk that he will be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subject to torture, that he will be subjected to cruel and inhumane treatment or punishment or that he will be subject to degrading treatment or punishment. The Tribunal found the applicant did not meet the criteria under s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. The proceedings in this Court were commenced on 18 May 2017. On 16 June 2017, a Judge of the Court made orders providing the applicant with an opportunity to file an amended application and affidavit evidence within a certain timeframe. No such documents were filed by the applicant. On 26 June 2017, this Court made orders fixing the matter for hearing today. Those orders were sent to the applicant’s email address identified on the applicant’s application.

Nature of the hearing

1. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained that in summary, this meant the Court was considering whether the Tribunal’s decision was unlawful or unfair. The Court explained that, if satisfied the Tribunal’s decision was unlawful or unfair, the decision would be set aside and sent back for further hearing. The Court explained that if not satisfied the Tribunal’s decision was unlawful or unfair, the application would be dismissed with costs.

2. The Court explained that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing, as explained by the Court.

Adjournment application raised from the bar table

1. From the bar table, the applicant then indicated that he wished an adjournment because he had only just received the submissions of the first respondent telling him to come to Court the next day. The first respondent indicated that he wanted an adjournment so that he could go and obtain legal advice. The Court raised with the applicant that he had had since the commencement of proceedings as an opportunity to obtain legal advice.

2. The Court raised with the applicant that he had been sent an email dated 26 October 2017, attaching a copy of the Court’s order fixing the matter for hearing. The applicant identified having gone through emails and only identified the email recently received. On the evidence before the Court, being the email marked Exhibit 1 of 26 October 2017, the Court finds the applicant was sent a copy of the order made by the Court fixing the matter for hearing on 26 October 2017. The Court does not accept that the applicant has not had an ample opportunity to obtain legal representation, if he was able to do so.

3. Further, the applicant was given an opportunity to file amended process and did not do so. The request for an adjournment was neither consented to nor opposed by the first respondent. The Court was not satisfied that an adjournment was warranted in the interests of the administration of justice. It is for these reasons that the adjournment was refused.

Applicant’s submissions from the bar table

1. From the bar table, the applicant maintained that he believed that he was entitled to the grant of a protection visa and that he had provided proper material to obtain a successful outcome. The applicant’s submissions from the bar table were in substance to invite this Court to engage in impermissible merits review. This Court does not have power to review the merits. Nothing said by the applicant from the bar table identified any jurisdictional error.

Grounds of the application

1. The grounds of the application are as follows:

   1. The AAT misinterpreted and misapplied term of law of general application relative to the situation in Ukraine, which has not declared a state of war but rather conducts an “anti-terrorist operation” and directs its national Army against population in Eastern Ukraine. Only specially trained personnel are required to take part in any anti-terrorist operations as opposite to general mobilization of people who are not trained. “Law of general application” addresses a mobilization to protect safety of Ukraine and its population against an external aggressor. As such, reservists cannot be conscripted to fight in anti-terrorist operation under this law. “Law of general application” is not relevant in this case and should not be used as a reason for refusal the applicant's application for protection.

   2. The AAT misinterpreted term of a “draft evader” not having recognized the applicant as such. The applicant stated during an interview and in his original application that he “will not turn a weapon against population of his own country who reside in eastern Ukraine” but if Ukraine declared a state of war and announces a war with the external aggressor he would serve his country and protect its population. By refusing to be mobilized to take part in anti-terrorist operation the applicant qualifies as a “draft evader” by conscientious reasons.

   3. The AAT recognized that “evasion of military service is punishable in law by up to three years' imprisonment” but the AAT misinterpreted term “persecution” by finding that a punishment for draft evasion is not “disproportionately harsh or severe".

Ground 1

1. In relation to ground 1, there is nothing in the applicant’s claim or the material before the delegate or the Tribunal to reflect the applicant making express complaint in respect of service because of antiterrorist operations. The applicant’s opposition to military service was because he did not want to kill people. That claim was correctly understood and the subject of findings that were open to the Tribunal in the circumstances of the applicant’s case. There was no misunderstanding by the Tribunal of the applicant’s claims, and the Tribunal made dispositive findings that were open for the reasons given by the Tribunal. Those adverse findings cannot be said to lack an evident and intelligible justification.

2. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. On the face of the material before the Court, the Tribunal complied with its obligations of procedural fairness in the conduct of the review. Further, it was open to the Tribunal to make a finding in relation to the Ukraine law in relation to the consequences of draft evader or desertion being a law of general application, and the applicant’s disagreement with the adverse finding does not identify any jurisdictional error. Ground 1 fails to make out any jurisdictional error.

Ground 2

1. In relation to ground 2, the Tribunal correctly identified the law relating to draft evader. The applicant had not been identified as a draft evader and the Tribunal rejected that the applicant had been called up since being in Australia. The Tribunal found that the applicant would serve if called up into the army and made findings that the applicant was not a conscientious objector. Those findings were open to the Tribunal for the reasons given by the Tribunal and cannot be said to be illogical or unreasonable. No jurisdictional error is made out by ground 2.

Ground 3

1. In relation to ground 3, the finding by the Tribunal that the Ukraine laws were appropriate and reasonably adapted in relation to draft evaders and deserters was open on the material before the Tribunal. Further, the Tribunal identified the limited nature of the punishment ordinarily imposed in respect of those who engage in draft evasion. Those findings by the Tribunal were open and cannot be said to be the subject of any unreasonableness, illogicality or irrationality. Ground 3 is, in substance, an invitation to this Court to engage in impermissible merits review. No jurisdictional error is made out by ground 3.

2. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date:  30 January 2018