Stoljkovic, S. v The Minister for Immigration & Ethnic Affairs
[1993] FCA 625
•07 SEPTEMBER 1993
SASA STOLJKOVIC v. THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No. VG276 of 1993
FED No. 625
Number of pages - 5
Migration
COURT
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIAN DISTRICT REGISTRY
GENERAL DIVISION
OLNEY J
CATCHWORDS
Migration - application for refugee status - review of decision to refuse application - Serbian married to Croatian - likelihood of conscription into Serbian armed forces if returned to Yugoslavia - unwillingness to serve in armed hostilities against Croats and Muslims.
Administrative Decisions (Judicial Review) Act, s 5
Migration (1988) Regulations, r 2A.8
Migration (1989) Regulations, r 131A
Migration Act, s 176
Migration Act, s 22AA
HEARING
MELBOURNE, 26 August 1993
#DATE 7:9:1993
Counsel for the applicant: Mr R. Douglas
Solicitors for the applicant: Plotkins
Counsel for the respondent: Mr T. Hurley
Solicitors for the respondent: Australian Government Solicitor
ORDER
THE COURT ORDERS THAT:
The application be dismissed with costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
THE APPLICATION
OLNEY J The applicant (whose correct name appears to be Sasa Stoiljkovic) seeks the review of a decision of a delegate of the respondent made on 11 June 1993 that the applicant is not a refugee.
The application is made pursuant to s 5 of the Administrative Decisions (Judicial Review) Act. (In these reasons the decision-maker is referred to for convenience as the delegate).
BACKGROUND
3. The applicant is a Yugoslav national of Serbian origin who arrived in Australia on 4 October 1988. Upon arrival he was granted a temporary entry permit for 6 months. On 6 November 1989 he was given permission to remain in Australia until 30 June 1990. No further entry permit has been granted.
On 31 January 1989 the applicant married Marija Seklamaeva with whom he lived until December 1989. They were divorced on 15 December 1991. Subsequently, on 5 February 1992, the applicant married Anna Ristic who is of Croatian origin and remains married to her although by reason of the applicant's detention first in prison and later in Immigration Department custody, they do not presently co-habit.
On 23 February 1989 the applicant made application for an entry permit on the basis of his marriage to Marija Seklamaeva. The application was refused on 22 September 1990 and an application to review was refused on 19 February 1991.
On 7 May 1991 the applicant was arrested by the Victoria Police and charged with a number of offences. Bail was refused and he has remained in custody ever since. On 13 March 1992 he was convicted of trafficking in heroin, assaulting police and threatening to kill. He was sentenced to a total of 3 years 9 months imprisonment. He was due for release on parole on or about 2 March 1993. Since that date he has been in immigration custody.
Whilst in custody, on 7 September 1991, the applicant was interviewed in relation to possible deportation and on 14 October 1991 a deportation order was signed. On 21 February 1992 he made an application for an entry permit as an illegal entrant under the limited amnesty granted by r 131A of the Migration (1989) Regulations but this was refused on 22 September 1992.
An application under s 22AA of the Migration Act for a determination that he have the status of a refugee was made on 3 March 1993. The application was refused by Ms R. Wilmot, a delegate of the respondent, on 16 March 1993, and on 19 March 1993 the applicant requested a review of the decision pursuant to r 2A.8 of the Migration (1988) Regulations. The review was conducted by the Refugee Status Review Committee (RSRC) which concluded its deliberations on 6 May 1993. The applicant was advised of the RSRC assessment to the effect that he did not meet the criteria for the grant of refugee status by letter dated 26 May 1993 and was invited to respond within 7 days. No response was received and on 11 June 1993 the delegate (Ms Seth-Purdie) decided that the applicant did not have the status of a refugee. The delegate's decision was communicated to the applicant in writing on the same day.
The present application was filed on 5 July 1993. An amended application was filed on 11 August 1993.
THE GROUNDS RELIED UPON FOR REVIEW
10. The amended application sets out in considerable detail the grounds upon which relief is sought. The grounds, omitting the detailed particulars pleaded, can be summarised as follows:
1. The decision was made in breach of the rules of natural justice.
2. The decision was an improper exercise of power in that -
(a) irrelevant considerations were taken into account;
(b) relevant considerations were not taken into account;
(c) the decision was so unreasonable that no decision-maker acting according to law could have made it.
3. The decision involved an error of law.
THE MIGRATION ACT
11. Section 22AA of the Migration Act provides that if the Minister is satisfied that a person is a refugee, the Minister may determine, in writing, that the person is a refugee.
The term 'refugee' has the same meaning as it has in Article 1 of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 (the Convention) as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (the Protocol) (Migration Act s 176).
THE CONVENTION AND PROTOCOL.
13. To the extent presently relevant the term 'refugee' is defined in the Convention as amended by the Protocol as any person who owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
The Office of the United Nations High Commissioner for Refugees has published a Handbook on Procedures and Criteria for Determining Refugee Status (the Handbook). Relevant to the matters at present in issue before the Court, the Handbook contains the following paragraphs in Chapter V, dealing with the special case of deserters and persons avoiding military service.
167. In countries where military service is compulsory, failure to perform this duty is frequently punishable by law. Moreover, whether military service is compulsory or not, desertion is invariably considered a criminal offence. The penalties may vary from country to country, and are not normally regarded as persecution. Fear of prosecution and punishment for desertion or draft-evasion does not in itself constitute well-founded fear of persecution under the definition. Desertion or draft-evasion does not, on the other hand, exclude a person from being a refugee, and a person may be a refugee in addition to being a deserter or draft-evader.
168. A person is clearly not a refugee if his only reason for desertion or draft-evasion is his dislike of military service or fear of combat. He may, however, be a refugee if his desertion or evasion of military service is concomitant with other relevant motives for leaving or remaining outside his country, or if he otherwise has reasons, within the meaning of the definition, to fear persecution.
169. A deserter or draft-evader may also be considered a refugee if it can be shown that he would suffer disproportionately severe punishment for the military offence on account of his race, religion, nationality, membership of a particular social group or political opinion. The same would apply if it can be shown that he has well-founded fear of persecution on these grounds above and beyond the punishment for desertion.
170. There are, however, also cases where the necessity to perform military service maybe the sole ground for a claim to refugee status, i.e. when a person can show that the performance of military service would have required his participation in military action contrary to his genuine political, religious or moral convictions, or to valid reasons of conscience.
171. 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.
172. Refusal to perform military service may also be based on religious convictions. If an applicant is able to show that his religious convictions are genuine, and that such convictions are not taken into account by the authorities of his country in requiring him to perform military service, he may be able to establish a claim to refugee status. Such a claim would, of course, be supported by any additional indications that the applicant or his family may have encountered difficulties due to their religious convictions.
173. The question as to whether objection to performing military service for reasons of conscience can give rise to a valid claim to refugee status should also be considered in the light of more recent developments in this field. An increasing number of States have introduced legislation or administrative regulations whereby persons who can invoke genuine reasons of conscience are exempted from military service, either entirely or subject to their performing alternative (i.e. civilian) service. The introduction of such legislation or administrative regulations has also been the subject of recommendations by international agencies. In the light of these developments, it would be open to Contracting States, to grant refugee status to persons who object to performing military service for genuine reasons of conscience.
174. 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 BASIS OF THE CLAIM FOR REFUGEE STATUS.
15. In his application for refugee status the applicant indicated that he was unwilling to benefit from the protection of his own country and that the basis of his claim for refugee status was "due to the war currently in Yugoslavia, also the fact that I am Serbian and my wife is Croatian". Under the general heading of the basis of his fear of persecution, when asked what he feared would happen to him if he returned to his own country he said "I would be drafted and forced to join the army and fight in a war that I do not wish to participate in - I fear for my life!" And when asked whether this would happen because of his race, religion, nationality, social group, political opinion or otherwise, he indicated "Race". He gave his race as Slavic, his ethnic/linguistic group as Serbian and his nationality as Serbian. He gave his religion as Orthodox and said that he had been prevented from practising his religion due to the Communist regime. In an interview with Ms Wilmot on 5 March 1993 when asked why he did not wish to return to Yugoslavia he said:
I stated that if I return to Yugoslavia I got married to a woman who is Croatian and as a Serb, as soon as I get to the airport it wouldn't be good because she is a Croatian and they would kill me because in recent times there are tensions between Serbs and Croatians. They don't tolerate each other. Not like that before, mixed marriages were okay. Now if you don't leave your wife they will kill you. If I go to Serbia, Serbs will kill me. If I return to Croatia, if I wait for the period when I can return there, Croats will kill me, so where can I go? Secondly, I served in the army so as soon as I returned they would make me shoot either Muslims or Croatians. I don't want to shoot other people and I don't want to be killed. I haven't got anything in Yugoslavia, a home or job or anything.
The appliant's case was argued on the premise that if he returned to Serbia and was then conscripted into the Serbian armed forces, he would refuse to serve on the grounds of a conscientious opposition to the present policies of the Serbian government in relation to war-like activities occurring in the former Yugoslavia.
THE DECISION REFUSING REFUGEE STATUS
17. The claims submitted by the applicant as the basis of his application for refugee status are summarised in the delegates reasons thus:
3.1 Following is a summary of claims submitted by the applicant in his refugee application:
3.1.1 If he returned to Yugoslavia (Serbia), the applicant would be drafted and forced to fight in a war which he opposes.
3.1.2 Mr Stoiljkovic, an ethnic Serbian, has married a Croatian and fears for his life in Yugoslavia
(Serbia).
3.1.3 He was not able to practice his religion because of the communist government of Yugoslavia. 3.2 Additional claims from the interview conducted on 5 March 1993 can be summarised as follows:
3.2.1 He would face death in Serbia as a traitor because he married a Croatian.
3.2.2 Mr Stoiljkovic is an army reservist and as such would be drafted to fight against Croatians and Muslims. He is against fighting these people and does not himself want to face death in combat.
3.2.3 He has no friends or family in Yugoslavia and has no home or job to return to. 3.3 Additional claims in the review application can be summarised as follows:
3.3.1 The applicant would face military service on return and will face persecution if he refuses. A de facto state of war exists in Yugoslavia. Mr Stoiljkovic is morally opposed to participation in the war.
3.3.2 The situation in Yugoslavia is now worse than it was and the penalties on those who refuse service have increased. The applicant faces still heavier sanctions because of "... his religion, political opinions, and race." 3.3.3 He would be forced into a conflict which "... violates basic human rights and has been condemned by the international community...". 3.3.4 He fears persecution based on religion because he has, under a previous regime, had to "... suppress his true religion ..." because of the risk of persecution.
3.3.5 His marriage to a Croatian would cause large scale and serious discrimination against him.
The delegate classified the applicant's various claims in terms of the Convention as follows:
a) Political opinion: 3.1.1, 3.2.2, 3.3.1-3.3.3 b) Religion: 3.1.3, 3.3.4
c) Race: 3.3.5
d) Nationality: Not applicable
e) Particular social group: 3.1.2, 3.2.1.
It was considered that claim 3.2.3 was not a Convention related claim. After addressing the Convention definition of "refugee" the delegate accepted that the applicant does not want to avail himself of the protection of Serbia, and indicated that her task was to assess whether this is because the applicant has, in relation to a Convention reason, a well-founded fear of persecution.
The delegate dealt briefly with the question of race, religion, nationality and social group. As to race, she considered the claims associated with the ethnicality of the applicant's wife and the impact that his marriage will have on him in Serbia. She could find no evidence to indicate that Serbs living in centres such as Belgrade (the applicant's home) suffer persecution because of their relationships with Croats, and give little weight to the claims that the applicant has a well-founded fear of persecution because of his marriage to an ethnic Croat.
So far as religion is concerned, the delegate concluded from the available evidence that the Orthodox religion is the religion in respect of which the current government of Serbia practises positive discrimination in education and gave no weight to claims that the applicant has a well-founded fear of persecution by reason of religion if he were to return to Serbia.
The applicant made no claims of persecution because of his nationality or because of his membership of a particular social group.
I set out in full the delegate's reasoning and conclusion under the heading of political opinion. (The folio references are to the departmental file which has been made available to the Court with the consent of the parties).
The applicant claims that he does not approve of the policies of the current government of Yugoslavia (Serbia and Montenegro) but his disagreement is centred about his claimed opposition to that country's miliary actions and the possibility that he would be required to serve in the army.
In the first instant, I do not accept his claim that he would necessarily be conscripted if he returned (3.1.1, 3.2.2, 3.3.1). DFAT express the view that the conscription of a person of the applicant's age and criminal record is not likely (f93). However, I accept that he may be called upon to serve. The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, paragraph 167, refers to the legal basis of conscription.
It is an internationally recognised right of a government to require military service by its citizens and to impose penalties for non-compliance or military desertion. I hold the view that even if conscription was to follow his return, this action is a legal requirement in Yugoslavia (Serbia) and I do not accept that a prosecution resulting from a refusal to serve for reasons of disagreement with government policy is a Convention-related matter.
As I accept the possibility of conscription, and the applicant's subsequent refusal to serve, and the possible resultant prosecution, another issue which should be addressed is that referred to in the Handbook in paragraph 169, and which is the subject of the claim listed at 3.3.2 - that is, "... disproportionately severe punishment ... on account of his race, religion, membership of a particular social group or political opinion."
Mr Stoiljkovic has presented no information which leads me to the belief that he faces heavier than normal penalties because of his religion, political opinion or race and I give this claim little weight.
Another issue concerning punishment is broached in the Handbook in paragraphs 56-60 - that is, 'excessive punishment'. Information from DFAT dated 12 May 1993 (ff 100-102) indicates that military service and conscientious objection fall under Article 124 of the Yugoslav criminal code and that a sentence of up to one year may be imposed for draft avoidance. Sentences of three to four months are more common and there is "... no comprehensive program of pursuing such offenders who avoided the draft prior to 1992."
More serious offences, such as travelling abroad to avoid service after a call-up document has been issued, may result in a longer sentence but UNHCR advise such a sentence is unusual (f 93). Mr Stoiljkovic left his country in 1988 and did not leave Yugoslavia to avoid military service.
On the information before me I am of the opinion that if the applicant were to be conscripted, and if he were to refuse military service, the penalties he would face are those legally applied by his country and I do not accept that they are excessive or persecutory within the meaning of the Convention. I accept that there are circumstances under which punishment for refusal of military service may constitute persecution. One such case is that of a person who, in the words of the Handbook, but as discussed in paragraph 171, wherein it is stated that it is "... not enough for a person to be in disagreement with his government regarding the political justification for a particular military action." Further, in paragraph 174, there is a reference to an earlier manifestation of the claimed opposition to serve and I see no evidence that the applicant previously opposed his military service.
I do not accept that the applicant has a well-founded fear of persecution because of possible prosecution should he be drafted and then refuse to serve.
I accept that another circumstance in which refusal to serve would be reasonable and actions against the individual may be persecutory is that mentioned in paragraph 171 of the Handbook, which talks of the "... type of military action ... is condemned by the international community as contrary to basic rules of human conduct ...".
I do not accept that a state of war exists in his country (3.3.1) and DFAT advise (f 120) that "Of the republics that comprise the former Socialist Federal Republic of Yugoslavia, only the Republic of Bosnia and Herzegovina is in a declared state of war." The Serbian army is not involved in a war and the UNHCR as quoted by DFAT at f 93 comment that: "The legal state of 'threat of war' is no longer valid."
The actions of ethnic Serbs in Bosnia-Herzegovina are not those of the Serbian army and the Serbian irregulars in Bosnia are not a force into which the applicant would face conscription (DFAT advice, f 94). The government of Serbia has recently distanced itself from the irregular forces in Bosnia and have declared that they will not supply those Serbs in Bosnia except with humanitarian aid.
If the applicant faces conscription it is into the regular army of Serbia and this force is not engaged in a war. In summary, for the above reasons, I do not accept that the applicant has a well-founded fear of persecution on return to his country based on his possible refusal to serve if conscripted into the Serbian armed forces.
In the result the delegate found that the applicant is not a refugee.
THE APPLICANT'S CASE
25. At the hearing of the application the applicant did not press the claim that there had been a breach of the rules of natural justice in the decision-making process.
I now set out in detail the various particulars pleaded by the applicant in support of the remaining grounds (which to some extent overlap). Each item as printed in italics is taken from the amended application. The responses which follow each item are the conclusions I have reached in respect thereof.
1. In assessing the risk of persecution faced by the Applicant the Respondent relied on the non-existence of a formal state of war in Yugoslavia, rather than considering whether there existed a de facto state of war within and between the States of the former Yugoslavia.
The delegate did not rely entirely upon the non-existence of a formal state of war in Serbia. She took account of a combination of facts namely that of the republics which comprised the former Socialist Federal Republic of Yugoslavia, only the Republic of Bosnia and Herzegovina is in a state of war; that the former state of 'threat of war' which had existed in Serbia was no longer valid; that the actions of ethnic Serbs in Bosnia and Herzegovina are not those of the Serbian army; and that the Serbian irregulars in Bosnia are not a force into which the applicant would face conscription. All of these finds were supported by evidence properly available to the delegate.
2. In assessing the relevance of prior military service to the well-foundedness of the Applicant's claim to have a politically motivated objection to military service, the decision-maker failed to take account of:
(i) events in the former Yugoslavia which had taken place between the time of the Applicant's military service and the time of the Applicant's application to be considered as a refugee.
The reference by the delegate to the applicant's prior military service was in the context of her consideration of paragraph 174 of the Handbook. Her finding that there was no evidence that the applicant had opposed military service was open to her and in the event did not weigh one way or the other in the decision-making process.
(ii) the fact that the Applicant had, subsequent to his service in the Yugoslav army, married a Croatian born woman, against whose people there was a real chance that he might be required to fight.
There was no evidence before the decision-maker to suggest that if conscripted into the Serbian army the applicant would be required to fight Croatians.
3. In determining whether punishments associated with the Applicant's reluctance to serve in the Serbian army could be treated as persecution, the delegate failed to take account of the fact that at all material times, the Serbian government was subject to sanctions imposed by the United Nations in response to the Serbian government's breaches of international law and basic human rights standards. The existence or otherwise of United Nations sanctions against Serbia was not relevant to the consideration of whether the applicant would suffer disproportionately severe punishment for refusing to serve in the Serbian army if conscripted. The evidence available to the delegate was that no such punishment would be imposed.
4. In estimating the punishment likely to be imposed in connection with the Applicant's refusal to serve in the Serbian armed forces, the delegate assumed, without evidence, that punishment would be no harsher as a result of the Applicant's reasons for refusing to serve. The delegate's estimate of the punishment likely to be imposed for refusal to serve in the Serbian armed forces was consistent with the evidence available to her.
5. The Respondent failed to give adequate consideration to the relevance of the Applicant's marriage to a Croatian born woman to the question of whether the Applicant faced persecution because of membership of a particular social group. The delegate considered the question of the applicant's marriage to an ethnic Croat under the general heading of 'race'. The same considerations would have been applicable if the matter had been treated as a claim based upon membership of a particular social group namely, Serbians married to Croatians.
6. The delegate misunderstood the term "well-founded" in respect of a fear of persecution by requiring that there be a much stricter test than that there be a real chance of persecution.
There is nothing in the delegate's reasons to support the assertion that she misunderstood the correct construction of the term "well-founded".
7. The delegate erred in assuming that punishment for refusal to serve in a country's defence forces could constitute persecution only if the refusal to conscientious objection to all forms of military service, regardless of the context in which the objection was to military service took place. The delegate's finding as to the punishment for refusal to serve in the Serbian armed forces was consistent with the evidence available to her.
8. The delegate erred in finding that the Applicant was not a member of a particular social group, namely those Serbians married to women from other "Yugoslav" ethnic backgrounds. This matter has been dealt with above under paragraph 5.
9. In consequence of the foregoing error, the Respondent has erroneously concluded that no cumulative grounds for the Applicant's claim for refugee status could exist. In the absence of any established error in the foregoing paragraphs, there is no basis upon which to claim on the basis of cumulative grounds.
CONCLUSION
27. The delegate has used as the basis of her decision the statutory definition of 'refugee' as explained in the Handbook. In so doing she is not said to have erred in law. She has dealt with each element of the definition and made findings of fact relevant thereto. Her findings have in each case been based upon evidence properly available to her.
The weight given by the delegate to each finding was entirely a matter for her judgment. In no way can it be said that any of her findings were either unsupported by evidence or unreasonable. In these circumstances there is no basis for this Court to review the decision and accordingly the application will be dismissed with costs.
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