Jovicic, Radosav v Minister for Immigration & Ethnic Affairs

[1997] FCA 174

CATCHWORDS

ADMINISTRATIVE LAW - Application for review of decision of Refugee Review Tribunal - error of law - whether drawing of inferences from primary facts can constitute error of law - proper approach for court in reviewing administrative decisions.

MIGRATION - Application for review of decision of Refugee Review Tribunal - whether applicant was a refugee ‑ conscription into military service - war in Yugoslavia ‑ whether applicant held a genuine conscientious objection to military service - relevant considerations - whether mixed motives disqualifies applicant from genuine conscientious objection.

Migration Act 1958 ss 36(2), 40, 65(1), 411(1)(c), 420, 425, 475(1), 476(1)

Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379

Guo v Minister for Immigration and Ethnic Affairs

(1996) 64 FCR 151

Than Phat Ma v Billings & Minister for Immigration and

Multicultural Affairs (Drummond J, 13 December 1996, Unreported)

Powley v Crimes Compensation Tribunal (Vic Sup Crt (CA)

(JD Phillips, Callaway JJA, Hedigan AJA) 16 December

1996, Unreported)

Tracy Village Sports and Social Club v Walker

(1992) 111 FLR 32

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Devries v Australian National Railways Commission

(1993) 177 CLR 472

Warren v Coombes (1979) 142 CLR 531

Rennie v The Commonwealth (1995) 61 FCR 351

Minister for Immigration and Ethnic Affairs and The Refugee

Review Tribunal v Mohinder Singh (Black CJ, Lee, Von Doussa, Sundberg & Mansfield JJ, 24 January 1997, Unreported)

R v District Court of the Northern District of the State of

Queensland; ex parte Thompson (1968) 118 CLR 488

Minister for Immigration and Ethnic Affairs v Wu Shan Liang &

Ors (1996) 185 CLR 259

Hamidi v Minister for Immigration and Ethnic Affairs (Hill J,

26 July 1996, Unreported).

VG 952/95
RADOSAV JOVICIC v MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

CORAM:    GOLDBERG J
PLACE:    MELBOURNE
DATE:     18 MARCH 1997

IN THE FEDERAL COURT OF AUSTRALIA )

VICTORIA DISTRICT REGISTRY       )

GENERAL DIVISION                 )             No VG 952/95

B E T W E E N:

RADOSAV JOVICIC
  Applicant

and

MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
  Respondent

CORAM:    GOLDBERG J
PLACE:    MELBOURNE
DATE:     18 MARCH 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. Application to review the decision of the Refugee Review Tribunal on 22 November 1995 be dismissed.

1. The applicant pay the respondent's costs of the application.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )

VICTORIA DISTRICT REGISTRY       )

GENERAL DIVISION                 )             No VG 952/95

B E T W E E N:

RADOSAV JOVICIC
  Applicant

and

MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
  Respondent

CORAM:    GOLDBERG J
PLACE:    MELBOURNE
DATE:        MARCH 1997

REASONS FOR JUDGMENT

Introduction and Background

On 18 December 1995 the applicant filed an application to review a decision of the Refugee Review Tribunal ("the Tribunal") given on 22 November 1995 which had affirmed a decision by a delegate of the respondent on 28 July 1995 that the applicant was not a refugee as provided by the Migration Act and refusing the applicant the grant of a protection visa. The application for refugee status had been made pursuant to the provisions of s 36(2) and s 65(1) of the Migration Act 1958 and by virtue of the provisions of s 40 relied upon the provisions of regs 2.04 and 2.05 of the Migration (1994) Regulations Part II and in particular on clause 866.211 of Schedule 2.

The issue which arises for determination is whether the applicant is a person who had on 22 November 1995 a well‑founded fear of being persecuted for reasons of political opinion (Article 1A(2) of the Convention Relating to the Status of Refugees) and the Protocol Relating to the Status of Refugees ("the Convention")). 

The applicant and his wife were born in Yugoslavia in 1951.  The applicant performed national service with the Yugoslav National Army in 1969 and he and his wife were married in 1975.  They came to Australia on 28 December 1978 on a sports visa and they returned to Yugoslavia on 28 November 1980.  Their son was born in Yugoslavia in 1982.  The applicant and his wife and son returned to Australia in December 1984 and in 1985 they applied for permanent residence on humanitarian grounds.  Their application was unsuccessful and the applicant was told by the Department by letter dated 15 August 1986 that he should leave Australia within fourteen days.  He did not do so and thereafter the applicant and his family remained in Australia illegally.

In May 1992 the applicant returned to Yugoslavia to visit his father who was ill and who died in May 1992.  On 20 January 1993 the applicant lodged an application for a visitor's visa with the Australian Embassy in Belgrade which application was refused.

In or about July 1993 the Yugoslav military authorities came to the applicant's house to summon him for military service but he told them that Radosav Jovicic was not at home which they apparently accepted.  A similar unsuccessful visit occurred two months later.

In January or February 1994 the applicant received an official notice requiring him to report for military exercises which were to take place from 3 February to 3 May 1994.  The applicant ignored the notice as he did not wish to do military service and went into hiding.  He then decided to return to Australia in order to avoid the call-up and travelled to Australia using the passport of a friend and travelling under the friend's name.  The applicant arrived in Australia on 25 April 1994.  A further call-up notice was sent to his Belgrade address in December 1994.

On 19 April 1995 officers of the compliance area of the Department of Immigration discovered the applicant and his family and took them into custody.  They were later released on a reporting basis and were granted bridging visas.

On 9 or 10 May 1995 the applicant and his wife and son lodged applications for refugee status which applications were refused on 28 July 1995. An application to review this decision was made to the Tribunal pursuant to s 411(1)(c) of the Migration Act 1958 on 24 August 1995 and on 22 November 1995 the Tribunal refused that application and affirmed the decision of the delegate of the Minister. On 20 December 1996 an application was filed with the Court to review the decision of the Tribunal and on 8 May 1996 an amended application was filed which particularised the grounds on which the applicant sought to quash or set aside the decision of the Tribunal.

Grounds of Review relied upon
The grounds relied on three sub-paragraphs of s 476(1) of the Migration Act and were as follows:

(a)The procedures that were required by the Act or the regulations to be observed in connection with the making of the decision were not observed.

Particulars

The Tribunal wholly failed to consider:

(i)the submission that the applicant fled Yugoslavia because he expected to be called up for miliary service;

(ii)the statement in the applicant's letter to the Tribunal referred to on page 15 of the Decision and Reasons for Decision;

(iii)the findings that the war in Yugoslavia then occurring involved gross human rights abuses and was one which was internationally condemned, that there was a real chance that a draft evader from Yugoslavia could face persecution for his evasion and that there is a real chance of forced conscription facing many Yugoslav males;

(iv)the evidence supporting the conclusions referred to in paragraph 4 of page 18 thereof;

(v)the Applicant's statements in his Departmental interview referred to in paragraph 1 of p15 thereof.

(b)The decision involved an error of law being an error involving an incorrect interpretation of the applicable law.

Particulars

(i)The Tribunal incorrectly applied a test that the applicant must have "thought seriously about the hard issues" concerning his objections to military service or to military service in the war in Yugoslavia before he could be said to have a genuine conscientious objection thereto.

(ii)The Tribunal incorrectly applied a test that a prerequisite to the grant of refugee status and a protection visa is that the applicant must have a genuine conscientious objection to participation in the war in Yugoslavia and failed to apply the "real chance of persecution" test.

(c)The decision involved an error or errors of law involving an incorrect application of the applicable law to the facts.

Particulars

The Tribunal failed to apply or correctly apply the "real chance of persecution" test to the facts that the war in Yugoslavia then occurring involved gross human rights abuses and was one which was internationally condemned; that the applicant was evading the draft in Yugoslavia; that the applicant had expressed moral objections to the war in Yugoslavia at his Departmental interview; that there was a real chance that a draft evader from Yugoslavia could face persecution for his evasion; that there was a real chance of forced conscription facing many Yugoslav males; and that the applicant would face a real chance of forced conscription or punishment for refusal as well as punishment for past draft evasion.

(d)The decision was not authorised by the Act or the regulations.

Particulars

The applicant refers to and repeats the particulars subjoined to paragraphs (a)-(c) above.

Relevant test for refugee status

Before the Tribunal the applicant's case was that he was a refugee because, in accordance with Article 1A(2) of the Convention he had a well-founded fear of being persecuted if he returned to Yugoslavia because he would be imprisoned or suffer a penalty for evading military service which he had evaded because he had a conscientious objection to participation in the war in Yugoslavia which involved gross human rights abuses or had been internationally condemned.  In order to determine whether an applicant is a refugee under Article 1A(2) of the Convention it is necessary to apply a subjective test and an objective test.  First the question is to be asked whether the applicant has a subjective fear.  If so, then the next question to be asked is whether from an objective viewpoint that fear is well‑founded and, if so whether the fear is based upon persecution for a Convention reason (Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; Guo v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 151). Put shortly, the question is - is there a real chance of persecution for a Convention reason.

Before the Tribunal and before the Court there was no contest or issue as to whether he would persecuted if he returned to Yugoslavia.  The Tribunal examined in some detail the connotation and denotation of the expression "persecution" and adopted the approach taken by Professor J Hathaway in his text, "The Law of Refugee Status" (1991) where the author takes the position that persecution is most appropriately defined as the sustained or systemic failure of State protection in relation to one of the core entitlements which has been recognised by the international community.  The author takes those entitlements to be the rights affirmed in the Universal Declaration of Human Rights and the International Covenant on Economic Social and Cultural Rights. 
The concept and meaning of persecution has been considered in some detail by the High Court in Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379. A number of different descriptions of persecution were identified by the members of the Court in Chan, for example, suffering some serious punishment or penalty or some significant detriment or disadvantage (Mason CJ at 388); selective harassment (McHugh J at 429-431); a threat to life or freedom (Dawson J at 399); significant deprivation of liberty (Gaudron J at 416).

For the purposes of this application it does not matter which view is taken as to the content or meaning of "persecution" and I am able to proceed on the basis that the applicant has established that he had at the time of the determination of the Tribunal, and presumably still has, a well-founded fear of being persecuted if he returns to Yugoslavia.  However, that finding is insufficient, of itself, to enable the applicant to describe himself as a "refugee" as the persecution must be for one of the reasons identified in Article 1A(2) of the Convention.  The particular reason relied upon by the applicant is "political opinion" which includes within it genuine conscientious objection to participating in military activity.

Evidence was placed before the Tribunal to support the applicant's claim that he had a genuine conscientious objection to military service in Yugoslavia.  The Tribunal examined that evidence with some care and accepted:

"that the war in Yugoslavia is indeed one involving gross human rights abuses and one which has been internationally condemned, and that the applicant would face a real chance of forced conscription or punishment for a refusal, as well as of punishment of his past draft evasion". 

Was the applicant's conscientious objection genuine?

The Tribunal then said that the sole remaining question to be answered was whether the applicant "has a genuine conscientious objection to participation in that war".  Mr Hurley who appeared for the applicant, accepted that this was the appropriate question to be asked and answered.

The Tribunal considered carefully all the evidence placed before it on this issue and noted that credibility of the evidence and the witnesses was of critical importance because the case essentially turned on whether the applicant's alleged conscientious objection to participation in the war in the former Yugoslavia was genuine.  The Tribunal analysed the evidence and concluded that, on the evidence, the applicant did not have a genuine conscientious objection to the war in Yugoslavia and that his claim to have such conscientious
objection was contrived with a view to obtaining refugee status. 

Analysis of Grounds for challenge

Mr Hurley, for the applicant, challenged the Tribunal's findings and conclusions on the grounds to which I have referred and it is necessary to consider each of those grounds in order.  The first ground was that "the procedures that were required by the Act or the regulations to be observed in connection with the making of the decision were not observed".  This submission was argued but faintly because Mr Hurley recognised, in my opinion, correctly, that the decision of Drummond J in Thanh Phat Ma v Billings & Minister for Immigration Multicultural Affairs (13 December 1996, Unreported) effectively foreclosed the issue. Mr Hurley submitted that the relevant procedures which were not observed were to be found in subss 420(1) and (2) and s 425 of the Migration Act 1958 and, when pressed, said that the relevant procedures were not followed because the Tribunal made findings adverse to the Appellant.

In my opinion this ground was misconceived. The particulars of the ground did not identify procedures which were not observed but rather took the form of asserting that the Tribunal failed to consider certain submissions and evidence. In argument Mr Hurley relied on s 420(1) and s 425 of the Act. However, failure to consider an aspect of evidence or submissions does not constitute a ground that a procedure or any of the provisions in s 420 or s 425 of the Act were not observed. At the most it is a complaint that the Tribunal either did not accept, or rejected, evidence which it should have accepted.

In any event each subject-matter of the Particulars of the Tribunal's failure to consider evidence and submissions was, as Mr Downing for the respondent submitted, referred to in the Tribunal's Reasons for Decision and was therefore taken into consideration by it. Indeed there was an express acceptance by the Tribunal that the war in Yugoslavia was one involving gross human rights abuses and one which had been internationally condemned and that the applicant would face a real chance of forced conscription or punishment for refusal as well as punishment for his draft evasion. Further the decision of Drummond J, which I consider I should follow, makes it clear that this ground cannot be relied on by reference to s 420 and s 425 of the Migration Act. As Mr Downing correctly submitted, a challenge to the decision of the Tribunal on the merits does not involve a contravention of any procedure set out in s 420 and therefore cannot give rise to a review on any of the grounds provided for in s 475(1) of the Act.

The ground upon which Mr Hurley placed the substance of his submissions was in reliance on s 476(1)(e) of the Migration Act 1958 namely that the Tribunal made an error of law being an error involving an incorrect interpretation of the applicable law when it said that the applicant "had never seriously thought about the issues involved", those issues being the issues involved in objecting to participating in war and military activities. It was submitted that the Tribunal erred in law and put a gloss on the relevant terms of the Convention when it said that satisfying the Tribunal that the conscientious objection was genuine involved or required "having thought seriously about the hard issues". It followed, Mr Hurley submitted that the Tribunal had failed to apply the correct test required by the Convention namely, to ask whether the applicant had a fear which was based upon a real change of persecution, that is a chance or possibility which was not baseless, for fetched or fanciful (Guo v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 151 per Foster J at 191).

It was said that the determination of whether the relevant political opinion existed, which in this case was a genuine conscientious objection to participation in a war which involved gross human rights abuses or is internationally condemned, depended upon a well-founded fear of being persecuted and that the reason for that fear was the holding of a political opinion.  It was said that having to have an intellectual approach to that political opinion was a gloss upon the Article in the Convention.  The submission concluded that the relevant error of law was that instead of considering whether the applicant had a well-founded fear of being
persecuted the Tribunal was considering whether the applicant had thought seriously about it in an intellectual way.

However, in my opinion, this submission misunderstands the task which the Tribunal was carrying out.  It was accepted by Mr Hurley that the appellation of refugee would not apply simply because the applicant asserted or stated that he had the relevant conscientious objection.  It was accepted that the conscientious objection had to be genuine which entitled the Tribunal to consider, analyse and weigh the evidence and the material before it.  Mr Hurley relied upon passages in Chapter 5 in the Handbook of Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the status of refugees published by the Office of the United Nations High Commissioner for Refugees.  Mr Hurley submitted, in effect, that it was wrong to ask whether the applicant had thought about the hard issues.  However, in my opinion, the passages in the reasons of the Tribunal, of which Mr Hurley complains, are no more than one aspect of the Tribunal's consideration of the evidence and the material before it.  The Tribunal considered carefully the issue of the credibility of the applicant when he said he had a genuine conscientious objection and it correctly identified Chan (supra) as establishing the relevant test. 

The Handbook upon which Mr Hurley relied supports the approach taken by the Tribunal.  In paragraph 171 the Handbook says:

"Not every conviction, genuine though it may be, will constitute a sufficient reason for claiming refugee status after desertion or draft-evasion.  It is not enough for a person to be in disagreement with his government regarding the political justification for a particular military action.  Where, however, the type of military action, with which an individual does not wish to be associated, is condemned by the international community as contrary to basic rules of human conduct, punishment for desertion or draft-evasion could, in the light of all other requirements of the definition, in itself be regarded as persecution."

Further, paragraph 174 of the Handbook is in the following terms:

"The genuineness of a person's political, religious or moral convictions, or of his reasons of conscience for objecting to performing military service, will of course need to be established by a thorough investigation of his personality and background.  The fact that he may have manifested his views prior to being called to arms, or that he may already have encountered difficulties with the authorities because of his convictions, are relevant considerations.  Whether he has been drafted into compulsory service or joined the army as a volunteer may also be indicative of the genuineness of his convictions."

The Tribunal considered all the evidence and having heard from the applicant and other witnesses reached its conclusion based upon its assessment of the evidence.  The Tribunal considered that the applicant could not be believed in his account of his reasons for leaving Yugoslavia.  It noted that although the applicant claimed that his motivation for leaving Yugoslavia was to avoid the draft after being served with the call-up notice in February 1994, the record showed that he had approached the Australian Embassy in Belgrade in January 1993 and lodged a visitor's visa application.  It will be recalled that this was six months prior to the first visit of the military authorities to the applicant's home.  The Tribunal also noted that when first spoken to by the Department's compliance officers after his detention in April 1995 the applicant's account of his reasons for leaving Yugoslavia made no reference to conscientious objection but rather related to family reasons. 

The applicant had an explanation for this account but I need not go into that issue because it is no part of my task to assess the evidence and form my own view of it but rather to ask whether there was any evidence upon which the Tribunal could reach the conclusions it did.  The Tribunal also identified other reasons which led it to the conclusion that avoidance of the draft was not a significant factor in the applicant's return to Australia in 1994.  I need not examine these reasons other than to note that they provided a basis for the findings and conclusions which the Tribunal made.

The passages complained of by Mr Hurley occur in the course of the detailed analysis of the evidence by the Tribunal.  In my opinion the Tribunal did not put a gloss on the relevant provisions of the Convention but rather was identifying but one aspect which it was considering in an overall assessment of the credibility of the applicant's evidence in order to determine whether the applicant had a genuine conscientious objection. 

Mr Hurley submitted further that the Tribunal made an error in its interpretation of the relevant provision of the Convention because it found that the applicant had "vacillated between saying that he objected to all wars and admitting that he would be willing to defend his country if it were attacked".  It was said that this was held against the applicant and was an error of interpretation because the relevant question was whether the applicant had a well-founded fear of persecution because of his objection to the war.  However, this finding of vacillation does not involve any issue of interpretation but rather identifies a finding in relation to the credibility of the applicant used by the Tribunal together with other findings to reach the conclusion that the applicant did not have a genuine conscientious objection to the war.  As I noted earlier the Tribunal had identified the relevant question to ask by reference to Chan (supra).

It was also submitted that there was a further error of law (not specified in the Particulars in the amended application) in the Tribunal's interpretation of the relevant provisions of the Convention because the Tribunal found that the applicant knew nothing about the United Nations Charter although in his letter of appeal to the Tribunal he had said that he opposed the war because, as it was against the United Nations Charter, it was a crime against humanity.  It was said that the Convention did not require a person to be skilled in United Nations documents but only to have a well-founded fear of persecution.  However, the relevance of the applicant's lack of knowledge of the United Nations Charter was no more than that the Tribunal took it into account in determining whether the applicant had a genuine conscientious belief in circumstances where he was asserting that the war was against the United Nations Charter.

In the course of his submissions Mr Hurley submitted that the Tribunal had not taken into account or balanced the intervening fact that there had been an outbreak and continuation of war in Yugoslavia between 1991 and 1996.  He was critical of the inferences which the Tribunal had drawn from the facts before it and he submitted that the Tribunal did not look at all possible inferences which could be drawn from the primary facts as found by the Tribunal.  He also submitted that the Tribunal drew inferences against the applicant which it should not have drawn.  I raised the question with Mr Hurley as to whether his submission that the Tribunal did not look at all possible inferences raised an error of law and invited the parties to make further written submissions on this issue which they did. 

Mr Hurley subsequently submitted it was an error, presumably of law, for the Tribunal:

(a)to infer from the legal status of the applicant and his family in Australia at various times after 15 August 1986 that the applicant was quite prepared to use dishonest means to travel to and stay in Australia without also
taking into account that hostilities commenced in Yugoslavia in 1991 and continued until 1996;

(b)to infer from the fact that the applicant desired in 1994 to return to see his wife and child that he had no desire to evade the Yugoslav military or civil authority.

Mr Hurley drew my attention to the recent unreported decision of the Victorian Court of Appeal in Powley v Crimes Compensation Tribunal (16 December 1996 JD Phillips & Callaway JJA, Hedigan AJA) where the Court considered the circumstances in which the drawing of inferences might be a ground for establishing an error of law. 

In reality the applicant's case in this respect is not so much that there was no basis upon which the Tribunal could draw the inferences it did, but rather that it drew the wrong inferences from the primary facts as found by the Tribunal when it should have drawn other inferences.  The statement that the applicant was prepared to use dishonest means to travel to and stay in Australia was made in the context of assessing the applicant's credibility.  It occurred in the context of a number of findings of fact (all supported by, and open upon the evidence) which the Tribunal found did not preclude the applicant from being a refugee but counted "heavily against his credibility".  As Mr Downing submitted, that reference by the Tribunal was not a basis for the determination of the matter but was rather one matter taken into account in determining the credit worthiness of the applicant.  A similar observation can be made in respect of the second passage upon which Mr Hurley relies which, again, was regarded as a further reason for doubting the applicant's credibility in general. 

The Powley decision referred to by Mr Hurley does not assist to advance his argument but rather supports the conclusion that the complaint about the Tribunal does not fall into the category of an error of law.  In that case the Court of Appeal identified and analysed many of the authorities which analyse the distinction between errors of law and errors of fact and when the drawing of inferences would fall into either category.  The Court of Appeal restated the often stated proposition that if a finding of fact whether by direct evidence or inference was not open to the Tribunal then there could be a relevant error of law but that there would not have been a relevant error of law unless the unsubstantiated finding was critical to the ultimate determination.  The Court of Appeal adopted the following passage from the judgment of Mildren J in Tracy Village Sports and Social Club v Walker (1992) 111 FLR 32 at 37-38 which is relevant in the present context:

"If there are no primary facts upon which a secondary fact could be inferred, and the secondary fact is crucial to the ultimate finding as to whether or not the case fell within the words of the statute, there is an error of law.  If there are primary facts upon which a secondary fact might be inferred, there is no error of law.  It is not sufficient that this Court would have drawn a different inference from those facts.  The question is, whether there were facts upon which the inference might be drawn ...

In the context of this discussion, if an inference cannot reasonably be drawn, it will be because the inference cannot be drawn from the primary facts.  However, if the inference is one about which minds might differ, it being a question of judgment or degree, the inference not only can be drawn but it would not be unreasonable to draw it. ..."

Can it be said that the inferences drawn by the Tribunal were not open to it?  In my opinion the answer must be in the negative.  I emphasise that the Tribunal was considering the credibility of the applicant who had given evidence before it.  The inferences it drew were open to it on the evidence before it in that there was evidence to support those inferences.  In any event, even if it could be said that there was no evidence to support those inferences the relevant passages relied upon by Mr Hurley form only part of a number of aspects of evidence upon which the Tribunal was entitled to make its findings as to the credibility of the applicant. 

Ultimately, Mr Hurley's real complaint was that the evidence admitted of different conclusions and different inferences but that assertion is insufficient to establish an error of law.  (Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 355-356). I do not consider that this is a case where it is open to me to draw inferences from the established facts different from those drawn by the Tribunal (Devries v Australian National Railways Commission (1993) 177 CLR 472; Warren v Coombes (1979) 142 CLR 531, 552-553; Rennie v The Commonwealth (1995) 61 FCR 351, 354-356), having regard to the
circumstance that it was open on the evidence for the Tribunal to draw the inferences which it drew.

The applicant also claimed that the Tribunal's errors of law involved an incorrect application of the applicable law to the facts.  It was submitted that the Tribunal incorrectly applied a test that a prerequisite to the grant of refugee status and a protection visa is that the applicant must have a genuine conscientious objection to participation in the war in Yugoslavia and failed to apply "the real chance of persecution" test.  However, I understood Mr Hurley to accept in argument, as indeed Article 1A(2) required, that it is not sufficient to find a well-founded fear of being persecuted; it is also necessary to find a relevant Convention reason for that persecution which in this case was said to be a political opinion established by reference to a genuine conscientious objection to participation in the war in Yugoslavia.  In the absence of a finding that the applicant held such conscientious objection, there was no Convention reason to which the applicant could point as being the reason for his well-founded fear of persecution.

I reach a similar conclusion in relation to the particulars relied upon in support of the error of law that the decision involved an incorrect application of the applicable law to the facts.  It was accepted by the Tribunal that the war in Yugoslavia involved gross human rights abuses and was one which was internationally condemned, but it was still necessary to establish the relevant genuine conscientious objection.  The fact that the applicant had evaded the draft, that there was a real chance that he could face persecution if he refused to serve as well as for evasion and/or forced conscription was relevant to the real chance of the applicant being subjected to persecution.  To that extent the Tribunal applied the correct test.  But it still had to find that the real chance of subjection to persecution was for a specified Convention reason.  The fact that the applicant had expressed moral objections to the war did not, of itself, determine the issue.  That evidence had to be taken in conjunction with the other evidence which was led before the Tribunal.  It was on the basis of the whole of the evidence that the Tribunal concluded that the applicant did not have a genuine conscientious object to the war in Yugoslavia.  The Tribunal set out the reasons why it reached that conclusion and those reasons were based on the evidence led before it and the credibility of the witnesses.

Mr Hurley also referred me to Part Two of the Handbook of "Procedures and Criteria for Determining Refugee Status" and drew my attention to paragraphs 196 and following which refer to the burden of proof for establishing the genuineness of a conscientious objection.  It is said that as it is frequently difficult for an applicant to provide evidence in support of its statement he should be given the benefit of the doubt if his account is credible.  However it is also noted that unsupported statements should not necessarily be accepted if they are inconsistent with the applicant's general account.  Accordingly the Tribunal was not obliged to accept the applicant's statements as to his conscientious objection at face value.  As was pointed out in paragraph 174 of the Handbook:

"The genuineness of a person's political, religious or moral convictions, or of his reasons of conscience for objecting to perform military service, will of course need to be established by a thorough investigation of his personality and background ..."

This says no more than that the whole of the evidence and all of the circumstances of the case must be considered.

In my opinion the Tribunal committed no error of law in its interpretation of the applicable law or in its analysis of the facts which were put before it to establish that the applicant was genuine in the conscientious objection which he professed.  Put shortly, the applicant's complaint was that the Tribunal should not have made the findings of fact that it did but rather should have accepted the applicant's evidence as to the genuineness of his conscientious objection, the evidence of Ms Gladanac, Father Joachim Ross and the letter submitted from Bishop Luka of the Serbian Orthodox Church in Australia.  However, putting the matter this way discloses the fallacy in the submission and the difficulty facing the applicant.  It is only a ground of challenge to the decision if the error complained of is an error of law.  An error of fact is not sufficient and a claim that the Tribunal should have accepted
certain evidence over other evidence discloses no error of law (See Powley (supra).)

Further, it was put that the Tribunal drew the wrong inferences from the facts placed before it but, again, a complaint that the Tribunal drew the wrong inferences does not disclose an error of law where it was open to the Tribunal to draw those inferences from the primary facts.

A further aspect of the errors of law claimed by the applicant to have been made was that it was submitted that the Tribunal had said that if a person either left a country or did not want to return to it for mixed motives then that person could not be a refugee.  It was said that the Tribunal had denied that the applicant was a refugee because he did not want to return to Yugoslavia for two reasons, firstly because he had a well-founded fear of being persecuted and secondly for family reasons.  It was said that the Tribunal took the view that these two reasons could not co-exist and that the Tribunal should have asked the question - is the applicant a refugee albeit a refugee who had other reasons for not wanting to return to Yugoslavia.  However, to put the submission this way discloses a misunderstanding of what the Tribunal said.  I do not consider that the Tribunal rejected the proposition that a person could not be a refugee if a person had a well-founded fear of persecution and also had another reason, namely not wanting to return to Yugoslavia.  Rather, the Tribunal found, upon detailed analysis of the facts before it, that the applicant did not have mixed motives but rather one motive.  That motive was a non-conscientious objection motive which was not founded in a political opinion within the meaning of Article 1A(2) of the Covenant.  The Tribunal expressly found that:

"The applicant does not have a genuine conscientious opposition to the war in Yugoslavia as he claims.  I find that his claim here was contrived with a view to obtaining refugee status."

This was a finding of fact reached after a detailed consideration of the whole of the evidence.  As there was evidence to support the finding, no error of law arises and it is not reviewable.

The final error of law relied upon by Mr Hurley, albeit not one particularised in the amended application, was that it was "unclear" whether the Tribunal was considering the applicant's circumstances and whether he had the relevant conscientious objection at the date of his leaving Yugoslavia (July/April 1994), the date of the Application for Refugee Status (May 1995) or the decision of the Tribunal (November 1995).  This submission was based upon the recent decision of the Full Court of the Federal Court in Minister for Immigration & Ethnic Affairs and The Refugee Review Tribunal v Mohinder Singh (Black CJ, Lee, Von Doussa, Sundberg & Mansfield JJ, 24 January 1997, Unreported).  In that case the Full Court concluded that the relevant time at which a person's status of refugee is to be assessed and determined is the date of the determination of the application before the Tribunal.  It was said by Mr Hurley that it was not clear by reference to which date the Tribunal's reasons and determination related.  However, in my opinion it is clear from the language used by the Tribunal that it was determining the applicant's status as at the date of its determination and not as at any earlier date.  One finds in the Tribunal's reasons, expressions such as:

"This leaves as the sole remaining question to be answered, whether he has a genuine conscientious objection to participation in that war"

and

"There are a number of other reasons for doubting that the applicant has a conscientious objection to military service as he claims"

and

"I therefore find that the applicant does not have a genuine conscientious opposition to the war in Yugoslavia as he claims"

(emphasis added).

There are other passages which also support the same conclusion.

Mr Hurley submitted that the Tribunal had also used an incorrect definition of conscientious objection.  He noted that if the applicant returned to Yugoslavia he would face persecution by reference to Article 214 of the Republic of Serbia Criminal Statute which made it a criminal offence not to attend for military training or other military service where an order was issued.  It was said that the Tribunal had adopted a definition of conscientious objection accepted in domestic law, found, for example, in The Queen v The District Court of The Northern District of the State of Queensland; ex parte Thompson (1968) 118 CLR 488. It was submitted that the domestic law definition of conscientious objection does not apply where a person is seeking to establish refugee status under the Convention where the relevant issue is whether or not he or she is being persecuted for reason of a political opinion. It was said that the reference to thinking seriously about the "hard issues" identifies a reliance upon the domestic definition. As I noted earlier this was not the sole reason for the Tribunal rejecting the applicant's claim that his conscientious objection was genuine. Rather, it was an identification of the fact that the applicant had not turned his mind to his attitude towards the war.

However, as Mr Downing submitted, the Tribunal relied heavily on international law considerations relating to conscientious objection and refugee status and in particular referred to a number of texts including Chapter 5 of the Handbook which considered in some detail (paragraphs 167-174) persons avoiding military service and the genuineness of their political convictions.  It is clear that the Tribunal was not approaching the concept or content of conscientious objection by reference to domestic law considerations; rather the Tribunal approached the matter by reference to International law and Convention situations.  The conclusion reached by the Tribunal that the applicant did not have a genuine conscientious opposition to the war in Yugoslavia was reached after a detailed analysis of the facts and the finding that avoidance of the draft was not a significant factor in the applicant's return to Australia in 1994.  However, the Tribunal was not limiting itself to a determination of the status of the applicant as at 1994 because it identified that there were a number of other reasons for doubting that the applicant has (emphasis added) a conscientious objection to military service as he claims.

In any event Mr Downing submitted that I should adopt the approach accepted by the High Court in Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 (citing Collector of Customs v Pozzolanic (1993) 43 FCR 280, 287) and that I should not construe the Tribunal's reasons for decision "minutely and finely with an eye keenly attuned to the perception of error" (page 272). I do not consider on a close analysis of the reasons of the Tribunal that it failed to take into account the relevant principles which determine the status of a refugee under the Convention.

The major issue which was before the Tribunal and which was before the Court was the genuineness of the conscientious objection claimed by the applicant.  The Tribunal analysed the facts put before it and concluded on the facts that the conscientious objection claimed was not genuine.  As I have observed earlier, no error of law was involved in the determination of that issue and the substance of the complaint made was that the facts should not have been found as they were.  Even if the Tribunal took into account irrelevant matters in reaching its conclusion that would not be a ground for review on the basis of an improper exercise of power (s 476(2)(d)). 

It is not for this Court to reconsider the merits of the decision.  As was said by the majority of the High Court in Wu (at 272):

"In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision maker upon proper principles into a reconsideration of the merits of the decision.  This has been made clear many times in this Court.  For example, it was said by Brennan J in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36:

'The duty and jurisdiction of the court to review administrative action does not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power.  If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error.  The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and subject to political control, for the repository alone.'"

In the same case Kirby J identified the role of the Federal Court as follows (at 291):

"3.Specifically, the reviewing judge must be careful to avoid turning an examination of the reasons of the decision maker into a reconsideration of the merits of the decision where the Judge is limited to the usual grounds of judicial review, including for error of law."

(See also Hamidi v Minister for Immigration and Ethnic Affairs (Hill J, 26 July 1996, Unreported).

No separate grounds of review were specified in the application for review in relation to the applicant's wife and son and no submissions peculiar to them were made at the hearing.  Accordingly I have proceeded on the basis that it is only the Tribunal's findings and conclusions in relation to the applicant which are the subject of the review.

The order of the court is that the applicant's application to review the decision of the Refugee Review Tribunal constituted by Dr Rory Hudson on 22 November 1995 and to quash or set it aside is dismissed with costs.

Counsel for the applicant:       Mr T V Hurley

Solicitors for the applicant:        Jholls

Counsel for the respondent:      Mr R M Downing

Solicitors for the respondent:    Australian Government

Solicitor

Date of Hearing:                 6 February 1997

Date of Judgment:                18 March 1997

I certify that this and the preceding twenty-eight (28) pages are a true copy of the reasons for judgment of His Honour Justice Goldberg.

Associate:

Date:18 March 1997