M20 of 2005 v Minister for Immigration

[2006] FMCA 299

FEDERAL MAGISTRATES COURT OF AUSTRALIA

M20 of 2005 v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 299

MIGRATION – Refugee Review Tribunal – applicant found by Tribunal not to be a credible witness – no error of law – application refused.

Migration Act 1958, s.424A

SZAIC v Minister for Immigration (2004) FMCA 103
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259

Applicant: APPLICANT M20 OF 2005

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent REFUGEE REVIEW TRIBUNAL

File Number: MLG 804 of 2005

Judgment of: Riethmuller FM

Hearing date: 28 February 2006

Date of Last Submission: 28 February 2006

Delivered at: Melbourne

Delivered on: 28 February 2006

REPRESENTATION

Counsel for the Applicant: In person

Counsel for the Respondents: Ms G. Costello

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application filed on 13 March 2005 is dismissed.

2. The applicant do pay the respondent’s costs, fixed in the sum of $4,950.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 804 of 2005

APPLICANT M20 OF 2005

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant filed an application in the High Court of Australia on 11 March 2005 seeking an order to show cause why a decision of the Refugee Review Tribunal of 8 September 2004 ought not be quashed.  This decision affirmed a decision of the delegate of the Minister for Immigration refusing to grant the applicant a protection visa.

2. On 3 June 2005 the matter was remitted to the Federal Magistrates Court of Australia by Hayne J.  On 15 November the applicant filed an amended application and contentions of fact and law.  The amended application sets out three grounds for review as follows:

   (1) The decision of the tribunal was manifestly unreasonable and/or illogical and/or there was no evidence to support its findings;

   (2) The tribunal failed to apply the correct legal test in reaching its findings in relation to conscription in the context of gross human right violations and war crimes in Sudan.

   (3) The tribunal failed to deal with the applicant's claim to fear prosecution for reasons of religion.

Background

1. The applicant is a 25‑year‑old male citizen of Sudan.  The applicant was born in Sudan but has lived in the Sultan of Oman since 1985.  He attended school in Oman and between 1998 and 1999 pursued further studies in India. 

2. In February 2002 the applicant came to Australia as a student.  On

   
   

   14 February 2003 the applicant's student visa was cancelled as a result of noncompliance with the various conditions of the visa.  He applied for a protection visa on 27 February 2003.  The applicant in his protection visa application claimed to have last arrived in Australia in February 2002.  Although the tribunal said at page 1 of its decision that he last in Australia in January 2003, it seems nothing significant turns on this issue.

3. The applicant claimed to fear returning to Sudan for a number of different reasons and these are well summarised by the submissions on behalf of the first respondent as: 

   (a)that he would have to perform military service;

   (b)he would be persecuted for reasons of political opinion based on his past involvement in the Democratic Unionist Party in India;

   (c)he would persecuted by reason of being from southern Sudan; and

   (d)he would be persecuted because of his views about religious matters.

4. The matter proceeded before the tribunal with an oral hearing on the part of the applicant. In this case the applicant's adviser forwarded to the tribunal, under cover of a letter of 18 August 2004, copies of all of the previous documents filed in support of the protection visa application. It appears, therefore, that in this case no issues with respect to s.424A of the Migration Act1958 would arise as the material was forwarded to the tribunal by the applicant and therefore falls within one of the exceptions in that section.  Similarly, the country information relied upon by the tribunal falls within one of the exceptions.

5. On 8 September 2004 the tribunal handed down its decision affirming the decision of the delegate.  At pages 16 to 17 of the decision the tribunal considered the applicant's claims with respect to race, stating:

   In the present case I do not accept that the Applicant’s family left Sudan to escape persecution due to their supposed southern origins nor that the Applicant has a well-founded fear of being persecuted for reasons of his race if he returns to Sudan. I find that the Applicant’s family were originally from the North, that they resided in the South for only 40 yeas, from 1924 to 1964, that they were unable to remain there because they were targeted as being from northern Sudan and that they consequently returned to the North where the Applicant himself was born. The Applicant said at the hearing before me that his grandfather and one of his uncles had married women from the South and all the family had therefore intermingled with the South but I do not accept the Applicant’s evidence in this regard.  I do not accept that the Applicant’s family is regarded as having southern origins due to the brief period they spent in the South nor do I accept that his family were subject to torture and persecution due to their racial origins as the Applicant claimed in his statutory declaration dated 2 July 2003. I do not accept that there is a real chance that the Applicant will be persecuted for reasons of his race if he returns to Sudan now or in the reasonably foreseeable future.

6. With respect to the applicant's past involvement with the Democratic Unionist Party and his views on religion, the tribunal went on to state at page 17 of its decision:

   In the statement accompanying his original application the Applicant said that he had been an active member of the DUP but as it transpired his political activities were confined to the period he spent studying in India between November 1998 and May 1999. The Applicant said at the hearing before rue that he did not really know when he had actually joined the DUP; he said that he had just found himself within the party. He claimed that he had spoken at student discussion sessions and had worked on four issues of a newsletter between January and April 1999. As I indicated to the Applicant, given the very limited nature of his political activities in India, I do not accept that he was attacked for reasons of his political opinion in India. The Applicant has produced no evidence from the DUP itself in support of his claims regarding his political activity in India and he does not claim to have been involved in any political activity in Australia. I do not accept that the Applicant was an active member of the DUP in India, as be claims, nor that he holds strong political beliefs opposed to the current regime in Sudan, to the civil war in Sudan or to the imposition of Sharia law on non- Muslims, I consider that the Applicant has made these claims in an attempt to bring himself within the definition of a refugee. If he genuinely felt strongly about these issues he could have spoken out about them while he was in Australia but he does not claim to have done so.

7. The tribunal also considered issues with respect to the compulsory military service that the applicant was likely to have to perform and the nature of the conflict that the Sudanese is currently engaged in.  In this regard the tribunal said at pages 17 to 18:

   I do not accept that, as submitted by the applicant's representatives, the applicant's decision to study overseas "can also be interpreted as an act of rebellion against the Sudanese government which generally requires men of the applicant's age to fulfil duties in the Sudanese army.

   ...

   As I put to the applicant in the course of the hearing before me, the Sudanese authorities kept on renewing his passport, not only in July 1999 but also in July 2001.  This does not suggest to me that they wanted the applicant to return to Sudan.  I do not accept that there is a real chance that the applicant would be persecuted for reasons of his real or imputed political opinion if he returns to Sudan now or in the reasonably foreseeable future. 

8. The tribunal went on to discuss some documents provided by the applicant in support of his claim that he would be considered a draft evader.  The tribunal had regard to the appearance of the documents and the typeface on them and formed some views about their genuineness.  The applicant disputes these findings, however, it appears to me that these are findings of fact rather than matters the subject of judicial review. 

9. In any event, the letter that the applicant referred to and relied upon as demonstrating that he had been called up by the draft board or equivalent in Sudan and not attended, has matters apparent on the face of it that would provide a reasonable person to question it.  For example, the letter simply says that he is requested to "report to the concerned authorities within one month from date".  It does not appear to set out to whom he is to report, the number or address to which he is to report or anything else of the like.  On the face of it, the document seems a rather odd way for a letter to notify a person that they are to attend a formal draft for compulsory military service.

10. The tribunal ultimately concluded:

    I do not accept that the applicant is regarded as a draft evader by the Sudanese authorities because he has not returned to Sudan since 1991, nor that there is a real chance that he will be prosecuted for draft evasion if he returns to Sudan now or in the reasonably foreseeable future.

11. The tribunal went on to consider the question of the applicant's obligation to perform military service saying at pages 18 and 19 of its decision:

    I accept that, if the Applicant returns to Sudan, he will be liable to perform military service in accordance with the National Service Act 1992 of Sudan. For reasons given above, I do not accept that the Applicant has a genuine objection to performing military service in Sudan based on his political opinion, his religious beliefs or his claimed racial ties with the people of southern Sudan. As I explained to the Applicant in the course of the hearing before me, it is well-established 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 for refugee status. This is because the laws imposing the obligation will ordinarily be laws of general application. While such laws inevitably single out a segment of the population - in this case males aged between 18 and 33 - such discriminatory treatment will not amount to ‘persecution’ if it is ‘appropriate and adapted to achieving some legitimate object of the country of the refugee’ (to borrow the words used by McHugh J in Applicant A, referred to above, at 258, approved by the High Court in Chen Shi Ha v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293 at 303 per Gleeson CJ, Gaudron, Gummow and Hayne 15). As I put to the Applicant, I consider that for the Government of Sudan to seek to defend itself against insurgents is a legitimate national objective in this context: compare Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25 at [47] per Gleeson CJ, Gummow and Kirby JJ.

    As I explained to the Applicant, the situation would be different if I were to be satisfied that he would be singled out or treated differently from any other person liable for military service, for one or more of the Convention reasons: see “Z” v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 51 at 58 per Katz J. However I do not accept on the evidence before me that there is a real chance that the Applicant will be singled out for conscription for one of more of the Convention reasons or that he will be treated differently from other Sudanese liable to perform military service for one or more of those reasons. As I likewise noted, there may also be exceptions to the principles outlined above where a conflict has been condemned by the international community or where conscription is likely to require a person to commit war crimes: see SZAIC v Minister for Immigration [2004] FMCA 103. As I put to the Applicant, however, while the international community has condemned abuses committed by both sides in the civil war in Sudan, and while it is trying to bring the war to an end, it has not condemned the conflict in Sudan as such. The Applicant suggested that if he were sent to perform his military service in southern Sudan he would be ordered to commit war crimes and he would be killed if he refused to follow orders. However, having regard to the view I have formed of the Applicant’s credibility, I do not accept his evidence in this regard. I am not satisfied on the evidence before me that there is a real chance that the Applicant will be required to commit war crimes if he is sent to perform his military service in southern Sudan.

Ground 1

1. The first error relied upon by the applicant is a claim that the findings of the tribunal were unreasonable and lacked logical or probative evidence.  The applicant puts forward a case that the decision made by the tribunal was so unreasonable that no decision-maker could have made it and that the findings or inferences of fact were illogical or not based upon any probative material.  In this regard, in his written submissions, the applicant referred to a claim that the tribunal had concluded that the applicant would not be regarded as a draft evader and at the same time found that he may well be punished for failing to complete his military service.  The applicant referred to passages of the tribunal decision quoted above.

2. It does not appear to me that the tribunal's findings are precisely as stated by the applicant.  The tribunal first rejected that the applicant was considered a draft evader by the Sudanese authorities as it did not accept his evidence in this regard.  It then found that it did not accept that he had a genuine objection to performing military service in Sudan based upon his political opinion, religious beliefs or his claimed racial ties with the people of southern Sudan. 

3. The tribunal went on to say that it is established legal principle that the enforcement of laws providing for compulsory military service and the punishment of those who avoid such service would not ordinarily provide a basis for a claim for refugee status.  The tribunal member went on to discuss this and referred to a number of authorities.  It does not appear to me that the reasoning process and findings adopted by the tribunal in this regard ought to or could be considered illogical or without foundation.

4. The applicant also relied on a second matter relied under ground 1.  He claimed that in making its findings, the tribunal concluded that it was a legitimate national objective for the government of Sudan to defend itself against insurgents.  It is difficult to cavil with the proposition that it is legitimate for an existing government of a sovereign nation to defend itself against insurgents.  Whilst it is clear that various members of the international community had condemned different abuses that had occurred during the civil war, the tribunal concluded that the civil war as such was not condemned.  It appears that these findings of fact were open to the tribunal.  I do not find a basis for judicial review in this part of the ground.

5. The third matter relied upon was the claim that the international community had not condemned the conflict in Sudan as such.  As set out above, this appears to me to be a finding of fact which was open to the tribunal. 

6. The fourth matter was that the tribunal had regard to the applicant's credibility in deciding whether or not there was a real chance that he may be ordered to commit war crimes whilst in the army.  It does not appear to me to be open to the applicant to challenge the finding of fact by the tribunal that they did not accept his evidence on this issue as being credible.  To say that an applicant's credibility generally is irrelevant to such a decision does not appear to me to be correct.  In some cases, a tribunal may well accept the evidence of an applicant as to what is likely to occur to him or likely to occur if he returns to a particular country and that of itself could in some cases be sufficient to found a case for a protection visa.  In other cases, the tribunal may be unable to decide whether they accept or reject an applicant's evidence and nonetheless grant a protection visa on the basis of other evidence before the tribunal.  But in cases such as this one, the lack of credible evidence from the applicant and the nature of the material before the tribunal may lead the tribunal to a situation where they are not satisfied that there is a real chance that somebody would be required to commit war crimes.  I do not find that the tribunal has erred in the manner in which they have approached the fact finding in this regard.  I therefore find, with respect to the first ground, that the applicant is not able to establish a basis for judicial review.

Ground 2

1. The second ground relates to a claim that the tribunal failed to apply the correct legal test.  The applicant sets out two parts to this claim in his contentions in support of his application.  In the first part, the applicant claims that his credibility is completely irrelevant to the issue of whether or not he would face the risk of being ordered to commit war crimes while serving in the Sudanese army.  I have dealt with this in the previous ground.  Whilst lack of credibility on the part of the applicant is a finding of the tribunal, it would not necessarily lead to a conclusion that he would not be required to commit war crimes.  The question of his credibility was a relevant matter for the tribunal to determine because a positive finding with respect to his credibility could well have led the tribunal to rely upon his evidence in support of his claim. 

2. In this case, it does not appear to me that the tribunal have erred by concluding that because he was not credible upon this issue, they should reject other unrelated evidence before them in support of this proposition.  That could, in some cases, be an inappropriate use of one piece of evidence to undermine another.  In this case, the tribunal has reviewed the material before it and made appropriate findings open to the tribunal which, in the way that they have made those findings, do not seem to me to provide a basis for judicial review.

3. The second part of this claim is an allegation that the tribunal failed to apply the correct legal test.  The applicant relied upon a decision of Raphael FM of SZAIC v Minister for Immigration (2004) FMCA 103 at 19-20. In that decision, his Honour referred to the proposition that refugee status might be afforded to one who has refused to undertake compulsory military service on the grounds that the person might be required to commit atrocities or gross human rights abuses or where refusal would earn grossly excessive or disproportionate punishment.

4. In this case, the tribunal considered the issue about whether or not the applicant may be placed in such a difficult position and concluded that he would not face a real chance of having to commit "war crimes". The applicant advances the argument that the tribunal ought to have considered whether or not he would be required to commit atrocities or gross human rights violations rather than war crimes. 

5. I have regard to the comments of the High Court in Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6 that:

   The reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.

   In the context of the decision‑making in this case, it appears to me that the substantive issue was addressed by the tribunal.  Whether they have used the general term "war crimes" or the phrase "gross human rights abuses" or other similar phrases to refer to the general nature of the conduct that was discussed does not appear to me to be an error.

Ground 3

1. The third ground raised in the application was a claim that the tribunal had failed to deal with the applicant's claim of fear of persecution for religious reasons.  The tribunal made findings about the applicant's political and religious beliefs as set out in the quotes referred to above.  The tribunal rejected this part of the claim based upon the material before it.  It appears to me that the tribunal has dealt with this issue within the claim and it was open to the tribunal to reject it, which the tribunal did.  I do not find that this provides a basis for judicial review in the context of this case.

Other matters raised at the hearing

1. During the course of oral argument, the applicant referred to a number of other matters relating to the findings of the tribunal with respect to credit and with respect to the extent of his political involvement in the past.  These matters appear to me to be issues of fact which are solely for the tribunal.  The applicant spent some time placing arguments before the court that he would not follow military orders if they required him to commit human rights abuses or war crimes.  However, the tribunal member has formed the view and made a finding that there would not be a real chance that he would be required to commit such crimes in the course of his military service.

2. The final matter raised by the applicant was a claim that he was not questioned enough about some topics so as to provide more evidence before the tribunal.  It is well-accepted law that an obligation is not upon the tribunal to seek out evidence in support of an applicant's case.  In this regard, it is not an error on the part of the tribunal, at least for judicial review purposes, to have not made further inquiries or questioned the applicant further so as to provide him with encouragement to or an opportunity to provide further evidence to the tribunal in support of his claims. 

Conclusion

1. In the circumstances, I am not satisfied that the applicant has established a ground for judicial review and I therefore refuse the current application.

2. In this matter, the applicant has been unsuccessful and there are no reasons why the costs ought not to follow the event.  The minister seeks costs in the sum of $4,950.  Having regard to the relevant court scales in the Federal Magistrates CourtRules 2001 and the most recent scale implemented with respect to Migration Act matters and the history and conduct of the matter, it appears to me that the amount of costs sought by the minister is a reasonable sum and that the appropriate order is that the minister have costs in that amount.  I therefore order the applicant pay the first respondent's costs fixed at $4,950.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Riethmuller FM

Associate:  Melissa Gangemi

Date:  24 May 2006