DIY17 v Minister for Immigration

[2018] FCCA 2826

FEDERAL CIRCUIT COURT OF AUSTRALIA

DIY17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2826

Catchwords:
MIGRATION – Protection Visa – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – where no error established in Administrative Appeals Tribunal’s decision – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.5J

Applicant: DIY17

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 711 of 2017

Judgment of: Judge Vasta

Hearing date: 30 August 2018

Date of Last Submission: 30 August 2018

Delivered at: Brisbane

Delivered on: 30 August 2018

REPRESENTATION

The Applicant appearing on their own behalf

Solicitors for the Respondent: MINTER ELLISON

ORDERS

1. That the Application filed 25 July 2018 be dismissed.

2. That the Applicant pay the costs of the First Respondent fixed in the sum of $5,600.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 870 of 2017

DIY17

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. As far as migration matters go, this matter is somewhat unusual.  The Applicant, who is a citizen of Israel, came to this country on a tourist visa.  That tourist visa was given to him on 2 February 2015 after he applied for it on 28 December 2014.  He entered Australia on 2 June 2015 on his present passport.  That passport showed that he had previously visited Bulgaria for a week in July 2011 and Spain for a week in September 2014.

2. The tourist visa was a three month visa and was due to expire then on 1 or 2 September 2015. 

3. A week before the expiration date, the Applicant applied for a protection visa.  That application was refused by the delegate in mid‑2016.

4. The Applicant then went to the Administrative Appeals Tribunal (“the Tribunal”) seeking an appeal of that decision.  On 30 June 2017, the Tribunal affirmed the decision not to grant Mr DIY17 a protection visa.  He lodged his application to this Court on 25 July 2017.

5. I say that it is unusual because the claim that DIY17 makes is that he does not want to complete reserve military duty and if it is that he is returned to Israel, he will be gaoled if he refuses to complete his reserve duty.

6. DIY17 attended primary and secondary school from September 1999 to August 2011 inclusive.  He went, in effect, straight from school into the Israeli Defence Force.  He was there from August 2011 until August 2014.  His final designation was that of commander.

7. What he claims, in the application that he made, was that he suffered in the Israeli Defence Force.  He said that he had a lot of pressure on him due to his military service and he felt he needed to leave Israel.  He said that his mental health was poor and that he does not sleep and he suffers from depression.

8. He says that if he returns to Israel, he fears being summoned to complete reserve duty which he does not want to do.  He said that if he refuses to complete reserve duty, he will be gaoled, as similar things have happened to his friends and he said that he does not believe the Israeli authorities will assist him as they will pressure him to complete his reserve duty and will gaol him if he does not.

9. The Tribunal had quite a deal of information before it and listened very, very carefully to what it was that the Applicant said.  He was asked about his career in the defence force and he said for the first three and a half months he completed boot camp and he was trained to use a machine gun and grenades.  After that, he completed another three and a half months in commander training and he was taught how to lead others.

10. After the completion of those seven months, he was asked his preferences and he requested Navy.  He was one of only three people to be granted their first preference.  His role was to train fighters on land and on ships and he performed this role for eight to 10 months.  As part of the role, he was also required to perform tours of border patrols.  He completed two or three tours of one to two weeks each in Tapuah near the West Bank. 

11. He told the Tribunal of his experiences there including a night where communications were lost and he and his partner were isolated near a hostile village.  One can imagine the feelings that he had that night and what fear he was experiencing then.

12. After this period, he sought a promotion to commander back in the Marines and he was successful.  He trained the incoming civilians in boot camp and then in commander training, as he himself had done.  He did this for seven months and he told the Tribunal of the pressure in the role that he had; not personal pressure just job pressure.  He then requested a transfer to a role as a sports instructor.  That role was less stressful. 

13. He then saw out his time in the defence force in this role.  He was required to do a border patrol but he managed to be relieved of that duty.  He said that one of his school friends was killed in a border patrol just two months before the completion of their service.

14. The Applicant was, according to the Tribunal, absolutely frank, honest and upfront.  He told the Tribunal that he was not unique; that many people lost friends in service; that many people felt pressure and that everybody was scared at some time.  He said that he believed in the Israeli Defence Force and that it was essential for the protection of the country and he said that everyone had to do their bit.

15. He said that he could have requested that he serve his three years in daily services which was essentially a desk job working nine to five and going home each night, but he did not choose to do that because he believed in his duty to serve.  He said that when his three years were completed, he felt a sense of pride and accomplishment that he was able to complete what many others do not do, whether through discharges for injury or for PTSD, or failing the entrance exam, or appearing mentally frail, and those things would be marked on your certificate of completion.

16. The Applicant told the Tribunal that once he completed his training, he worked as a personal trainer and as a waiter until a couple of days before he left Israel for Australia.  He was asked why he left Israel and he said that he has to do one month of reserve service per year.  He referred to a battle in Gaza in July 2014 and noticed that it was mostly reservists that were killed.  He said that he felt pressure, that the gym he worked at was in the north where both Arabs and Israelis were going and there were sometimes tensions between them.  He said people knew that he was in the army.

17. He said that he received his reservist letter by email which advised him that he may be called up for reserve duty and he could be called up at any time and not necessarily for a block of one month; it could be periods of a couple of days at a time.  The Applicant said that with regard to his poor mental health and depression, realistically, he suffered no more than most in his position and that he was not unique.

18. The Tribunal went through quite a deal of country information and noted what the consequences were for those who did not attend military service.  That country information was put to the Applicant and, at paragraph 70, the Tribunal noted that he agreed with the information that was presented there.

19. The Tribunal said that they noted that the reservist letter that the Applicant had received said that he “may” be called up for service and that the country information strongly suggested that only the best soldiers are called up, noting that 90 % of service is performed by 10%. 

20. The Tribunal noted that the Applicant completed the service and sports instruction.  The Tribunal asked the Applicant whether that might be noted and the Applicant stated that he will be called up; it did not matter what the letter said.  He also said that his file will note him as a commander and not in which division he served.

21. The Tribunal mused, at paragraph 72, that perhaps the Israeli Defence Force might exclude him from reserve duty on the basis of the 90 % of the work being done by 10 % of the reservists and that the Applicant had completed his service in personal training.

22. The Tribunal asked the Applicant about his trip to Spain following the completion of his service and asked why he did not seek refuge in Spain but he said he did not think that he would stay there; he was having a holiday and he had not received his reservist letter at that time.

23. The Tribunal discussed with him the timings of the grant of his tourist visa and his departure from Israel and his ultimate application for a protection visa which was about a week prior to the expiration of the tourist visa.  The Applicant said that he had to continue to work to save some money to travel and the Tribunal discussed with the Applicant why it should not be entitled to believe that the fear of persecution was not genuine; that there was no urgency and no desperation.  The Applicant agreed with the Tribunal that he was not desperate and he was not afraid of being in Israel; he was simply fearful of the consequences of his refusal to serve if he were called up.

24. The Tribunal then assessed the claims according to the standards of the Migration Act 1958 (Cth) (“the Act”) and what the Courts have asked Tribunals to do when assessing these claims.

25. At paragraph 84, the Tribunal said that they accepted that the Applicant completed his three years of military service and completed his service with the rank of commander.  The Tribunal accepted that the Applicant received a certificate of completion and he has received an email advising that he may be called for reserve service.  The Tribunal accepted that the Applicant has not received any notification actually calling him up for reserve duty.  The Tribunal noted that, like many young Israelis, the Applicant does not want to do his annual month of reserve service.

26. The Tribunal accepted that the Applicant does not have any political opinion contrary to the government and would not be of adverse interest to the government of Israel and the Tribunal accepted that Israel’s defence law required that all persons of military service found fit for service and not being on regular service shall belong to the reserve forces and shall be liable to annual reserve service and monthly reserve service.  According to country information, the consequences for evasion of military service include prosecution and either a fine or imprisonment.  The Tribunal noted that, in some circumstances, it is possible to obtain an exemption to military service.

27. The Tribunal found that the laws governing conscription were of general application.  The Tribunal considered that Israel’s conscription laws were generally applicable laws, appropriate and adjusted to a legitimate national objective and it acknowledged that a law of general application though is capable of being implemented or enforced in a discriminatory manner.  However, without evidence of selectivity in their enforcement, the laws governing conscription and reserve service in Israel will generally amount to no more than a non‑discriminatory law of general application.

28. The Tribunal noted that the Applicant must demonstrate in order to satisfy the refugee criteria that the punishment feared will be imposed discriminately for a s.5J(1)(a) reason, namely religion or political opinion or membership of a particular social group.

29. The Applicant is not truly a conscientious objector because he has participated already in the military and believes in it; he just simply does not want to participate any more.  The Applicant at no time has claimed to be a conscientious objector and the Tribunal looked at that matter. 

30. In the end, the Tribunal came to a conclusion that the Applicant is a patriot who actually believes it is the obligation of all Israelis to make a contribution to do their bit towards the protection of the country’s borders.  The Tribunal noted that the Applicant was justifiably proud of his service and he did not seek in any way to shirk what he saw as his duty.

31. The Tribunal noted that the threshold for “real risk of harm” is commensurate to that of a “real chance of harm” and the Tribunal was satisfied that the risk is one faced by the population of a country generally and not faced by the Applicant personally; that the Applicant does not have a real chance of being subjected to significant harm should he return to Israel. 

32. In doing that, the Tribunal came to the conclusion that the Applicant neither satisfied the refugee criteria nor the complementary protection criteria.

33. The application to this Court had three grounds.  They were:

    a. I would like to explain myself better this time.

    b. I know exactly which paperwork I should find in order to prove that I belong to a specific type of group that can be in danger and it will help my case.

    c. I would like this time to hire a lawyer and consult with him how to present my case better.  So far I was doing it on my own.

34. As was explained to the Applicant, this is not an appeal; it is a review, and none of the grounds of review display any jurisdictional error.  The Applicant nevertheless complied with the orders that Registrar Lynch made on 25 September 2017 and lodged his outline of submissions.

35. Those outline of submissions brought into his argument a number of factual matters that were not before the Tribunal but really centred around a submission that, whilst he was not a conscientious objector, he was instead in the minority social group that is unwilling to complete reserve duty and, although he does not object to the military, he is unable and unwilling to undertake the remaining army service.

36. He submitted that his fear of harm amounts to threats of his life and significant physical harassment and ill‑treatment and that the delegate who had originally looked at the matter, came to a different conclusion to the Tribunal.

37. Tribunals coming to different findings or conclusions than the delegates is not, in and of itself, any cause for finding that there is a jurisdictional error.  The question is whether the conclusions made by the Tribunal were open on the evidence before it.  Here, in this case, the conclusions were truly open to the Tribunal, notwithstanding that the delegate had come to a different view.  In many ways, this is quite refreshing because it shows that the Tribunal has approached its job with a fresh set of eyes and has not been constrained by anything that has been decided beforehand.

38. The Applicant said that, whilst the Tribunal found that he did not have a real chance of being subjected to significant harm if he returned to Israel, because it was a risk that was one faced by the population generally and not personally by himself, this is an inaccurate and sweeping statement. He said that if he was forced to return to Israel he would refuse to return to the Israeli Defence Force’s reserve service which will inevitably result in his punishment and an immediate prison sentence.

39. He has, in the submissions, given a whole lot of new evidence as to his experiences during his time in the military and has also given quite a number of examples of people who have been imprisoned for being conscientious objectors.  The difference in his case is that:

    a)he is not a conscientious objector; and

    b)he has actually completed his military service.  It would only be his reservist service and he has not given any example here of any reservist who has actually been imprisoned for refusing to do the reserve duty.

40. But as I say, none of that is of any consequence because none of that material was before the Tribunal in the first place.

41. In the end, the Applicant conceded to me that he did not truly understand that this was a review and not an appeal and did not truly understand the limitations of the arguments that he could make here.

42. Whilst it is that the Applicant does not agree with the eventual finding by the Tribunal, there is no jurisdictional error.  It is clear from the way in which the reasons were set out that the Tribunal followed the legislation and followed the guidelines given to the Tribunal and the ultimate decision that the Tribunal made was one that was open to it.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 18 October 2018