SZAIC v Minister for Immigration - [2004] FMCA 103

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAIC v MINISTER FOR IMMIGRATION

[2004] FMCA 103

MIGRATION – Review of RRT decision – where application for protection visa stated concerns about participating in a war which required participants to breach the Geneva Convention (Nuremberg Principles) relating to the conduct of war – where Tribunal decision centred around fact that conscription was a law of general application – whether punishment for refusing conscription on grounds that the applicant would have to breach international law can constitute persecution for a Convention reason – whether there was a failure by the Tribunal to exercise its jurisdiction.

Mehenni v MIMIA (1999) 164 ALR 192
Nulyarimma v Thompson (1999) 96 FCR 153
Murill-Nunez v MIEA (1995) 63 FCR 150
Timic v MIMA [1998] FCA 1750
Mijoljevic v MIMA [1999] FCA 834
MIMA v Shaibo [2000] FCA 600
Trpeski v MIMA [2000] FCA 841
Semunigus v MIMA [1999] FCA 422
WACW v MIMIA [2002] FCAFC 155
Chan v MIMA (1989) 169 CLR 379

S v RSAA (1998) 2 NZLR 291

Sepet v Secretary of State [2003] 3 All ER 304
W396/01 v MIMA [2002] FCAFC 103
MIMA v Wu Shiang Liang (1996) 185 CLR 259
MIMA v Yusuf (2001) 206 CLR 323
Htun v MIMA [2001] FCA 1802
Abebe v Commonwealth (1999) 197 CLR 510

K Kuzas, Asylum for Unrecognised Conscientious Objectors to Military Service: Is there a Right Not to Fight? (1991) 31 Va.J.Int’Il 441

Applicant:

SZAIC

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 468 of 2003

Delivered on:

8 March 2004

Delivered at:

Sydney

Hearing date:

15 December 2003

Judgment of:

Raphael FM

REPRESENTATION

Solicitors for the Applicant:

Michael Jones

Counsel for the Respondent:

Mr D Jordan

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The court declares that the decision of the Refugee Review Tribunal made on 31 January 2003 and handed down on 20 February 2003 is void and of no effect.
The application is referred back to the Tribunal for consideration and determination according to law.
The respondent to pay the applicant’s costs assessed in the sum of $4,500.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrate’s Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 468 of 2003

SZAIC

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of the Russian Federation who arrived in Australia on 19 May 2000. At that time he was approximately 18 years of age. He appears to have come to Australia for study. On 28 June 2000 he lodged an application for a Protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs. On 21 July 2000 a delegate of the Minister refused to grant a protection visa and on 17 August 2000 the applicant applied for review of that decision by the Refugee Review Tribunal. The Tribunal reviewed the decision after having the applicant attend upon it and made a decision on 31 January 2003 to affirm the delegate’s decision not to grant a protection visa. That decision was handed down on the 20 February 2003.
The applicant provided to the delegate copies and translations of two notices stamped but not dated requiring him to attend a call-up office on 8 June 2000 and 15 June 2000 respectively [CB 36] and [39]
In his application for a protection visa the applicant responded to the question “Why did you leave that country” with the following statement:
“I left Russia on the student visa hoping to get education in Australia. Recently I received information from home that I should attend the Military Registration and Enlistment Office with a purpose to join the Russian military. That means that I should go to the Chechens war that still is not finalised. I do not want to serve in the Russian army because I do not want to participate in this war which is conducted in a breach of the Geneva Convention of the conducting of war. This war is conducted with the violation of the basic human rights. I do not want to be a part of the Russian military and became a murder [sic] of innocent people in Chechnya. I disagree with the Russian official policy in regards to this war.
If I return to Russia, I will be forced to join the Russian army. If I refuse I will be punished by the Russian authorities. The other choice for me is to hide somewhere for the rest of my life.
I am not scared to join army however I do not want to participate against the dirty war against Chechens because I am believing that this war has nothing with the proclaimed war against Chechen terrorists. This to my opinion is the war against Chechen nation.
The main purpose of this war is the President’s Putin personal goals.
If I return to Russia I definitely will be subject for persecution for the part of the Russian State for avoiding conscription.”
At [CB 68] the Tribunal under the heading “Review Application” says:
“The applicant contests the delegate’s conclusion that his claim of conscientious objection to serving in the army in Chechnya is not well-founded because he was not involved in any activity in opposition to the war in Chechnya, and there is legal recourse to avoiding conscription and also because he can obtain exemption as a student. He argues that his objection to serving in the armed forces is itself an anti-war action. His refusal to participate in “the Chechen bloodshed” makes him an anti –war activist with a clear political opinion that the war is criminal and not, as claimed by the Russian government, a war against Islamic fundamentalists and terrorists to protect the integrity of the Russian state.”
Between [CB 69] and [71] the Tribunal details the discussion between itself and the applicant during the hearing. On page [69] there is a discussion concerning the Tribunal’s view that the law relating to conscription is a law of general application so that any punishment that the applicant might suffer for evading his service obligations would be applied without discrimination against him personally. The applicant responded that he was not afraid of joining the army, what he was against was the conduct of the war in Chechnya which he believed contravened the relevant Geneva Convention. He said that Russian soldiers there were ordered to kill innocent people, including women and children. He gave descriptions of other activities required by the army and said that if he was conscripted he would be expected to behave in a similar fashion. He did not believe that was right and he did not wish to participate.
There was further discussion concerning the attitude of the Russian authorities to conscription and the fact that the constitution allowed for civilian alternatives to military service. It seems clear from the Tribunal’s discussion and its reference to country information that the enabling legislation in respect of this constitutional right was only passed by the Russian Parliament on 25 July 2002 and would not come into force until 1 January 2004. There is no indication whether such legislation is retrospective or prospective.
The tribunal accepted that if the applicant was returned to Russia, he would be arrested, he would be tried and imprisoned from anything from a few months to three or four years and then would be required to undertake his military service. If the Chechen war was continuing he would be required to serve there. In relation to the Chechen conflict the Tribunal found from country information that the conflict over Chechen efforts to obtain independence from Russia had involved considerable brutality from both sides. At [CB 73] quoting from a UK Home Office report dated April 2002 the Tribunal noted that draft evasion was widespread and punishable by one to three years imprisonment, five years in aggravated circumstances. It also referred to reports of mass extrajudicial executions of groups of deserters by the Russian military authorities.
In its findings and reasons the Tribunal noted that conscription was a universal obligation under Russian law and that this was a law of general application. It found that there was nothing in the evidence before it to indicate that the law relating to evasion of conscription obligations, which was a punishable offence, would be applied to the applicant in a discriminatory way. The Tribunal noted that there was no claim that if he was punished for evading his conscription responsibilities and was then required to undertake his military service the applicant would be discriminated against or harmed during that period of service for reason of his having initially evaded such service. The Tribunal did not accept that the applicant’s refusal to be drafted was a political statement of opposition to the Chechen war.
The Tribunal went on at [CB 75] to consider the quotation from paragraph 171 of the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and made references to the decision of the Federal Court in Mehenni v MIMIA (1999) 164 ALR 192. At [CB75] the Tribunal said
“I gave consideration to whether the applicant might be regarded as belonging to a particular social group (PSG),” Russian draft evaders. Based on the fact, reported in the country information, that draft evasion is widespread in Russia and that, as has been widely documented in the media, the war in Chechnya is a highly controversial issue among the Russian public, I am prepared to accept, that Russian draft evaders satisfy the requirements, under the Convention, of a PSG.
However, in order to satisfy the criteria for Convention-based persecution the applicant would have to demonstrate that he has a well-founded fear of persecution for reason of his membership of that PSG. For such a fear to be well-founded it must have both a subjective and objective basis. While I accept that the applicant has a subjective fear, I am unable to be satisfied that his fear has the requisite objective basis. If he returns to Russia and is punished for evading conscription by imprisonment, there is nothing in the evidence before me that suggests that such punishment would be applied to him in a selective or discriminatory manner. Nor is there anything in the evidence to indicate that he might suffer any punishment not contemplated in the relevant law which, as earlier stated, I find to be of general application.”
In his case for review the applicant submits that the references in his original application to the Geneva Convention were references to the “Principles of International Law recognised in the Charter of the Nuremberg Tribunal and in the judgment of the Tribunal.” These Nuremberg principles set out the obligations of personal responsibility upon persons who commit crimes under International Law which are not excused by having acted pursuant to orders of a government or a superior. The crimes referred to are:
(a) War Crimes: violations of the laws or customs of war which include, but are not limited to, murder, ill-treatment or deportation to slave labour or for any other purpose of the civilian population of or in occupied territory; murder or ill- treatment of prisoners of war, of persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity.
(b) Crimes against humanity: Murder, extermination, enslavement, deportation and other inhuman acts done against any civilian population, or persecutions on political, racial or religious grounds, when such acts are done or such persecutions are carried on in execution of or in connection with any crime against peace or any war crime.
It is the applicant’s argument that if there was evidence to indicate that the war in Chechnya was being conducted in a manner which breached those principles then the Tribunal was required to have considered whether the Russian laws which would force the applicant to engage in that war could properly be characterised as “laws of general application” when it would be reasonable to conclude that they were in fact void as laws altogether. The applicant argues that a law which cannot lawfully be obeyed is not in fact a law.
It is argued that because the Tribunal did not consider this case which was squarely put to it, it failed to exercise its jurisdiction under the Act.
The applicant says the Tribunal failed to consider whether or not imprisonment for avoidance of his draft responsibilities amounted to serious persecution under s.91R when it was imposed upon a person for refusal to breach international law.
The applicant also argues that having been characterised as a member of a particular social group it would be incorrect to argue that the persecution that he would suffer would not be “for reason of ‘that membership’ ”. To do so would be to subvert the Nuremberg principles themselves which are now recognised as fundamental pillars of International Law.
In Nulyarimma v Thompson (1999) 96 FCR 153 the Full Court accepted the existence of the international crime of genocide:
“It is accepted by all parties that under customary international law there is an international crime of genocide, which has acquired the status of jus cogens or a peremptory norm. This means that states may exercise universal jurisdiction over such a crime.” per Whitlam J at [36]
The task before me is to decide whether or not punishment for refusing to be conscripted into a military force that is likely to require the applicant to breach the Nuremberg Principles can constitute persecution for a Convention reason. And if it can, whether or not the Tribunal considered this possibility in relation to this particular applicant. It would then be for the Tribunal to make a finding on whether in all the circumstances the applicant had the necessary fear of persecution for a Convention reason.
In Mehenni v MIMA [1999] FCA 789 Lehane J was referred at some length to the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status. The references are set out at [18] of his Honour’s judgment. These references make it clear that fear of prosecution and punishment for desertion or draft evasion does not in itself constitute well-founded fear of persecution under the definition and this principle has been adopted by the Australian courts and confirmed in a number of cases: Murill-Nunez v MIEA (1995) 63 FCR 150; Timic v MIMA [1998] FCA 1750; Mijoljevic v MIMA [1999] FCA 834; MIMA v Shaibo [2000] FCA 600; Trpeski v MIMA [2000] FCA 841. However, the Handbook goes on to say at [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 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 on human conduct, punishment for desertion or draft-evasion could, in light of all other requirements of the definition, in itself be regarded as persecution.” (emphasis added)
There is comment upon the above section of the Handbook in the Virginia Journal of International Law (1991) 31 Va.J.Int’Il 441 in an article entitled Asylum for Unrecognised Conscientious Objectors to Military Service: Is there a Right Not to Fight? by Kevin J Kuzas at [460] the learned author says after quoting the extract:
“The recommendation of this paragraph has roots in the Nuremberg Tribunal at which the major World War II war criminals were tried. These trials stand for the principle in international law that individuals can and will be held criminally liable for atrocities committed during war, and possibly for the war itself. The role of the individual in the decision making process is irrelevant: following orders is no excuse. This widely accepted principle implies a duty on the part of individuals to abstain from military action when gross violations of human rights are likely to occur. Hence the Handbook recommendation: nations cannot decry atrocities and war crimes on the one hand, yet refuse asylum to individuals whose conscience prevented their association with such acts on the other (Musalo, Swords into Ploughshares: Why the United States Should Provide Refuge to Young Men Who Refuse to Bear Arms for Reasons of Conscience, 26 San Diego L. Rev 849 at 860 (1989).”
The status of the Handbook was considered by Finn J in Semunigus v MIMA [1999] FCA 422 at [9] –[11]. His Honour noted that the handbook was a source of guidance and assistance to contracting states but said that it was impossible to conclude that it embodies procedures that are required by the Migration Act to be observed in connection with the making of a refugee status determination. However the context to which his Honour was referring to was that of procedures so I do not believe that this case stands as authority for indicating that the type of refugee claim referred to in the quoted extract and relied upon by this applicant could not be brought in Australia. In WACW v MIMIA [2002] FCAFC 155 the Full Bench at [17] quoted from Mason CJ in Chan v MIMA (1989) 169 CLR 379 at 392 where his Honour referred to the Handbook as:
“a practical guide for the use of those who are required to determine whether or not a person is a refugee…”
In S v RSAA (1998) 2 NZLR 291 the New Zealand Court of Appeal said at 300:
“Although the handbook can be accorded due weight, it cannot override the function of, in this case the court, in determining the meaning of the words of the Convention.”
But the Handbook is not the only authority for the applicants’ contentions. In Sepet v Secretary of State [2003] 3 All ER 304 at 311 Lord Bingham in the House of Lords, after approving dicta of Dawson J in Applicant A v MIEA (1996) CLR 225 at 247-248, said:
“There is compelling support for the view that refugee status should be accorded to one who has refused to undertake compulsory military service on the grounds that such service would or might require him to commit atrocities or gross human rights abuses or participate in a conflict condemned by the international community, or where refusal to serve would earn grossly excessive or disproportionate punishment (see, for example, Zolfagharkhani v Canaga (Minister of Employment and Immigration) [1993] FC 540, Ciric v Canada (Minister of Employment and Immigration) [1994] 2 FC 65, Canas-Segovia v Immigration and Naturalization Service (1990) 902 F 2d 717, UNHCR Handbook on Procedures and Criteria for Determining Refugee Status (paras 168, 171)).
In my view it follows from the above that in Australia it is a matter for consideration by a Tribunal as to whether or not fear of punishment for refusing to undertake military service where that service is likely to involve the applicant in a breach of the Nuremberg principles constitutes persecution for a Convention reason. The Tribunal would also have to consider if the fear was well-founded. I would therefore answer my first question in the affirmative.
In cases such as W396/01 v MIMA [2002] FCAFC 103 at [35] the responsibility of the Tribunal to look at all the evidence and material that it has not rejected and give consideration to a case which it might reasonably raise, notwithstanding that such a case might not have been contended for by the applicant, was made clear. But I do not think that the applicant in this case has to rely on that authority which was explained by Kirby J in MIMA v Wu Shiang Liang (1996) 185 CLR 259 at 294-5, because I think that the applicant’s references to the Geneva Convention found in his application for a Protection visa at [CB 17] and referred to by the Tribunal at [CB 69] are clearly a reference to the Nuremberg principles. Consideration of his claim on this basis was not made by the Tribunal which looked at the claims (in a thorough and fair minded way) on the basis that the applicant was the victim of a law of general application. The Tribunal’s failure in this regard was a failure to complete the task mandated to it: MIMA v Yusuf (2001) 206 CLR 323; Htun v MIMA [2001] FCA 1802; Abebe v Commonwealth (1999) 197 CLR 510.

I would make one additional comment. The Tribunal discussed with the applicant country information which indicated that the Russian Federation was taking a more lenient view towards conscientious objectors. It referred to legislation passed by the Russian parliament on 25 July 2002 providing for alternatives to military service. As this law would not come into effect until the 1 January 2004 I cannot see how it could properly be taken into account by the Tribunal making a decision on 31 January 2003. The existence of this law does not appear to have been influential in the Tribunal’s decision and I do not think it would be appropriate for me to take it into consideration in exercising any discretion which I may have. I am of the view that the appropriate order to make in this matter is that it be referred back to the Tribunal for consideration according to law.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: