SZAOG v Minister for Immigration
[2004] FMCA 125
•22 March 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAOG & ANOR v MINISTER FOR IMMIGRATION | [2004] FMCA 125 |
| MIGRATION – Review of Refugee Review Tribunal decision affirming a delegate’s refusal of a protection visa – disputed findings of fact – no reviewable error found. |
Migration Act 1958 (Cth)
Plaintiff S157 of 2002 v Commonwealth [2003] HCA 2
| Applicant: | SZAOG & ANOR |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ794 of 2003 |
| Delivered on: | 22 March 2004 |
| Delivered at: | Sydney |
| Hearing date: | 3 March 2004 |
| Judgment of: | Jarrett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr. C. Jackson |
| Counsel for the Respondent: | Mr. R. Beech-Jones |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Application dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ794 of 2003
| SZAOG & ANOR |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application under the Judiciary Act 1903 for relief in respect of a decision of the Refugee Review Tribunal (“the RRT”) made on
20 March, 2003 and handed down on 11 April, 2003. The applicant and his daughter, who are citizens of Russia, arrived in Australia on
20 February, 1998. He lodged an application for protection (class AZ) visas for his daughter and himself on 23 March, 1998 with the Minister's department. A delegate of the Minister refused the application for protection visas on 1 May, 1998. On 22 May, 1998 the applicant applied for review before the RRT.
On 26 September, 2000 the Tribunal affirmed the delegate’s decision and on 27 February, 2001, the Federal Court of Australia affirmed the decision of the RRT. The applicant appealed to the High Court of Australia which, on 8 April, 2002 allowed the appeal and ordered that the matter be remitted to the RRT to be determined according to law.
On 11 April, 2002, a differently constituted RRT handed down its decision made on 20 March, 2003 affirming the delegate’s decision not to grant protection visas to the applicant and his daughter. On 8 May, 2003 the applicants filed the current application wherein they seek orders in the nature of certiorari, prohibition and mandamus.
At the commencement of the hearing, I granted leave to the applicants to read and file an amended application. By the amended application the applicants abandoned their grounds alleging a lack of procedural fairness and bias. They confined the grounds of their application to:
“The Tribunal erred in its understanding of the law in relation to conscientious objection to military service, and such an error went to the Tribunal's jurisdiction.”
Only the first named applicant (who for ease of reference I shall hereafter refer to as “the applicant”) made specific claims in support of the visa application. His daughter’s claim relied solely on the basis that she was a member of his family unit. That claim was accepted by the RRT and so, if I am satisfied that the applicant has made out his ground for review, I should accept the same in respect of the second named applicant.
The claims made by the applicant before the RRT of a well-founded fear of persecution were many and varied. Given the ground now relied upon by the applicant in the amended application, it is only necessary to consider one discreet aspect of the applicant’s claims namely that relating to his objection to serving in the Russian military in Chechyna.
The evidence before the tribunal, revealed that the applicant was called up for compulsory military service in October 1995. He was a qualified "airborne technician of helicopter MI-8MT ". In the course of his duties he was posted to the city of Sevastopol which is located not far from the Chechen border in the Caucasus. He was informed that he would be involved in transporting wounded soldiers. Through carrying out his duties he learned that some Russian offices were selling weapons to the Chechen rebels. The Russian soldiers were extremely demoralised. The Chechens supplied the Russian soldiers, the applicant said, with alcohol and drugs. The applicant claimed that very few in the army dared to speak out against the wrongdoing that he witnessed, but that he had spoken openly about his objections during one of the regular regimental meetings. As a result, the Commander of the regiment banned him from flights and later had him arrested for "refusal to obey orders". He was under arrest for about 10 days. The tribunal specifically found (p.100-101 Court Book) that the applicant was a reservist lieutenant for about six weeks commencing in October 1995. He further claimed that he is still subject to further call up for military service and that the war with the Chechen rebels continues.
The tribunal recorded the following in respect of the applicant’s claims relating to his military service:
In a submission accompanying his application for review the applicant stated that his ‘numerous public protests against the policy and methods of the war between Russia and Chechnya, against meaningless and brutality of the slaughter of peaceful citizen by Russian troops, were considered by my commanders as a "political sabotage", and I was persecuted for that, and my life was put under fatal danger. (p.94 Court Book)
…
He was then expelled by the section commander as he expressed his political point of view about the war in Chechnya and he exposed corruption. (p.95 Court Book)
…
The applicant claims he wrote a letter at end of December 1997 after he left St Petersburg to the Russian President about what he had witnessed in Chechnya and complaining that the authorities were taking no steps to protect him and his family. He wrote several leaders to the military prosecutor. He wrote to them as he was a witness to war crimes in Chechnya. He saw insufficient medication, soldiers not being fed and their shocking conditions. He wrote about what he had seen in 1995 in Chechnya and his view of the war in Chechnya. (p.97 Court Book)
The tribunal dealt with the applicant's claims in the following way:
"The applicant claims he is still subject to call up and the war continues. Recognition of the right of a government to conscript its citizens is provided in the International Covenant on Civil and Political Rights. It is not enough that an applicant's refusal to perform military service is motivated by reasons of being a pacifist, a conscientious objector or a partial conscientious objector. It is not enough to found a claim for refugee status based on punishment for refusal to perform military service, unless the sanctions that are imposed on applicant for Convention reasons. See: Ram v MIEA (1995) 57 FCR 565 at 568, Amanyar & Anor v MIEA (1995) 63 FCR 194 and Jahazi v MIEA (1996) 133 ALR 437. The applicant claims that he objects to the Chechen conflict and the Russian military methods of dealing with this conflict. Whilst I accept the applicant has these beliefs, I have found no independent evidence to suggest that persons who object to the conflict are treated any differently or any punishment imposed upon citizens for disobeying the draft is enforced in a discriminatory manner. I find that any reservist call up is the enforcement of a law of general application.
In Applicant A & Anor v MIEA, McHugh J considered the possibility of a law, which is on its face legitimate and non discriminatory, being applied in a persecutory manner. His Honour stated at 354-355:
Conduct will not constitute persecution, … if it is appropriate and adapted to achieving some legitimate object of the country of the refugee. A legitimate object will ordinarily be an object whose pursuit is required in order to protect or promote the general welfare of the State and its citizens. The enforcement of a generally applicable criminal law does not ordinarily constitute persecution…
However where a racial, religious, national group or the holder of a particular political opinion is the subject of sanctions that do not apply generally in the state, it is more likely than not that the application of the sanction is discriminatory and persecutory. It is therefore inherently suspect and requires close scrutiny. …Only in exceptional circumstances is it likely that a sanction aimed at persons for reasons of race, religion or nationality will be an appropriate means for achieving a legitimate government object and not amount to persecution.
This reasoning clearly applies to the situation where the state conscripts persons of a particular racial, religious, or national group, the holders of a particular political opinion or members of a particular social group.
I take the view that conscientious objection to military service will pacifist news or objection to call up as a reserve is a not sufficient grounds to attract the protection of the contravention. If the applicant were to be call up called upon to serve as a reserve is on his return to Russia, as a reserve is this action would be a legal requirement in that country. The obligation to perform reserve is to military service is universal upon all males in the applicants country, and hence it does not in itself amount to discrimination against him. I have found that no suggestion in the independent evidence that such laws are enforced in a discriminatory manner."
It is apparent from the matters set out above that the applicant’s claim was not one based upon a conscientious objection to any military service. Rather he objected to service in the Chechen conflict because of the matters to which he had borne witness. Before me the applicant argued that the tribunal had not at all dealt with his claim of a well-founded fear of persecution for a convention reason arising out of his objection to serving in the Chechen conflict. It was submitted that the tribunal had not embarked upon any relevant inquiry, or if had done so, had not inquired far enough so as to deal with the applicant’s claim according to law.
The applicant based his argument upon the judgment of Gray J. in Erduran v MIMA [2002] FCA 814. In particular, the applicant relied upon the following passages:
27…In my view, the line of authority from Magyari to Applicant M represents the law on this subject.
28 It therefore appears that, when an issue of refusal to undergo compulsory military service arises, it is necessary to look further than the question whether the law relating to that military service is a law of general application. It is first necessary to make a finding of fact as to whether the refusal to undergo military service arises from a conscientious objection to such service. If it does, it may be the case that the conscientious objection arises from a political opinion or from a religious conviction. It may be that the conscientious objection is itself to be regarded as a form of political opinion. Even the absence of a political or religious basis for a conscientious objection to military service might not conclude the inquiry. The question would have to be asked whether conscientious objectors, or some particular class of them, could constitute a particular social group. If it be the case that a person will be punished for refusing to undergo compulsory military service by reason of conscientious objection stemming from political opinion or religious views, or that is itself political opinion, or that marks the person out as a member of a particular social group of conscientious objectors, it will not be difficult to find that the person is liable to be persecuted for a Convention reason. It is well-established that, even if a law is a law of general application, its impact on a person who possesses a Convention-related attribute can result in a real chance of persecution for a Convention reason. See Wang v Minister for Immigration & Multicultural Affairs [200] FCA 1599 (2000) 105 FCR 548 at [65] per Merkel J. Forcing a conscientious objector to perform military service may itself amount to persecution for a Convention reason.
29 In the present case, the Tribunal did not even embark on the first stage of this process. Having recited the applicant's claims, including his initial claim that he does not believe in war and does not want to kill anyone and wants world peace, the Tribunal did not go on to consider whether the applicant was a conscientious objector. It appears to have assumed that, even if he were, his liability to punishment for that conscientious objection would not give rise to a real chance of persecution for a Convention reason. It also appears to have assumed that only a real chance of a harsher than normal penalty, by reason of a Convention attribute, would give rise to a well-founded fear of persecution. Those assumptions reveal a failure to understand the law.
The line of authority referred to in the above passages by Gray J. commences with Magyari v MIMA [1997] FCA 417. In that case, O’Loughlin J was dealing with a review of a decision of the RRT. The applicant claimed that he had a well-founded fear of persecution because of his objection to being drawn into the conflict in the Balkans by being subjected to compulsory military call up. After referring to a passage from World Refugee Survey: 1986 in Review, V. Hamilton ed., at p.31 (1987), His Honour said p.21 (of the copy of the report given to me):
I see no reason why the passage just quoted should not be accepted as a statement of principle – that there may be cases in which conscientious objection to military service will be the basis of a well founded fear of persecution for a convention reason. For example, the refusal to perform military service may derive from one's religious beliefs, or it may be by virtue of one's political opinions.
His Honour recognised, however, that there could be no successful claim to refugee status unless the claimant’s conscientious objection based upon a convention ground led to persecution of the claimant. At p.24, His Honour said:
Even if it be accepted that the applicant is a conscientious objector and even if it be assumed that Hungary treats such persons harshly (to the point of persecution in the legal sense) what is left wondering whether the reason for the persecution is a convention reason. (my emphasis)
Further, at p.26, His Honour made the position even more explicit:
If he returns to Hungary the applicant will only be persecuted if: -
- Hungary is engaged militarily in the Balkan conflict
- the applicant is called up for compulsory military service
- the applicant objects to such service for a convention reason
- the appropriate authorities react to his objection in such a harsh way that the reaction will amount to persecution (my emphasis)
In Mehenni v MIMA (1999) 164 ALR 192, at [21] – [22] Lehane J made clear the link between a claimant’s conscientious objection to military service on convention grounds and the need for the tribunal to be satisfied that there was a real chance of persecution for that reason. His honour said:
21 …. The terms of Art 1A(2) of the Convention make it clear that a refugee is a person who has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. The importance of the words "for reasons of", was emphasised by the Full Court in Ram. Burchett J (with whom O'Loughlin and Nicholson JJ agreed) said at 568:
"The link between the key word `persecuted' and the phrase descriptive of the position of the refugee, `membership of a particular social group', is provided by the words `for reasons of' - the membership of the social group must provide the reason. There is thus a common thread which links the expressions `persecuted', `for reasons of', and `membership of a particular social group'. That common thread is a motivation which is implicit in the very idea of persecution, is expressed in the phrase `for reasons of', and fastens upon the victim's membership of a particular social group. He is persecuted because he belongs to that group."
Again, in Applicant A, McHugh J said at 257:
"When the definition of refugee is read as a whole, it is plain that it is directed to the protection of individuals who have been or who are likely to be the victims of intentional discrimination of a particular kind. The discrimination must constitute a form of persecution, and it must be discrimination that occurs because the person concerned has a particular race, religion, nationality, political opinion or membership of a particular social group."
22 That is the perspective from which the sufficiency of the Tribunal's reasons must be assessed…
Similar approaches can be discerned from the judgments in Mijolevic v MIMA [1999] FCA 834 at [20] – [23], MIMA v Shaibo [2000] FCA 600 at [27]-[28] and Applicant N403 of 2000 v MIMA [2000] FCA 1088 at [16] – [21].
To the extent that the passage from Erduran v MIMA (above) relied upon by the applicant before me might be taken to suggest that a tribunal must make findings about the reasons underlying a conscientious objection first and thereafter consider the question of persecution for those reasons (as was urged upon me by the claimant), the passage is not consistent with the remarks of the High Court in MIMA v Yusuf (2001) CLR 323. At [55] Gaudron J. said:
Nor, in my view, does the failure of the Tribunal to make a finding as to whether or not Mr Israelian was a member of a particular social group comprised of deserters and/or draft resisters reveal reviewable error for the purposes of s 476(1) of the Act. The Tribunal's conclusion that the punishment Mr Israelian would face "for avoiding his call-up notice ... would be the application of a law of common application" necessarily involves the consequence that that punishment would not be discriminatory and, hence, would not constitute persecution [18]. In that context, the question of Mr Israelian's membership of a particular social group comprised of deserters and/or draft resisters became irrelevant.
At [94]-[97] McHugh, Gummow and Hayne JJ said:
[93] Mr Israelian contended that the Tribunal failed to make a finding about one of the two bases upon which he claimed to have a well-founded fear of persecution. He claimed that he was a refugee both because of his political opinions (being his conscientious objection to military service in connection with a particular territorial dispute between Armenia and Azerbaijan) and because of his membership of a particular social group (being deserters or draft evaders).
[94]The Tribunal found that if, on his return to Armenia, Mr Israelian was punished for not meeting his obligation to give military service it would be "the application of a law of common application, imposed by the authorities regardless of ... any political opinion". This, in the opinion of the Tribunal, did not constitute persecution. The Tribunal framed its discussion of the issues in its s430 statement in terms of Mr Israelian's claim to be a "conscientious objector" and concluded that his expressed views "do not disclose genuine convictions based on ethical, moral or political grounds". It did not, in its reasons, refer expressly to his alleged membership of a social group (being that of deserters or draft evaders) although it expressed its conclusion about unwanted consequences that might happen to him on his return as punishment which "would not be motivated by Convention reasons".
[95]The failure to refer to one of the alternative bases on which an applicant for a protection visa based a claim would, in many cases, reveal a failure to take account of relevant considerations or an error of law such as would enable judicial review on the grounds stated in s 476(1)(b), (c) and (e). Cases can, however, readily be imagined where the factual findings relating to one asserted basis for protection necessarily and inevitably denied any other basis for protection.
This was said to be such a case. It was submitted on behalf of the Minister that the finding that Mr Israelian was not a conscientious objector inevitably denied both the holding of a relevant political opinion and the membership of a relevant social group. We do not accept that this is such a case. The social group identified by Mr Israelian was defined by reference to the fact of avoidance of military service, not the reasons for that avoidance. It follows that the finding of fact that was made by the Tribunal did not conclude the issues raised by Mr Israelian's alternative claim.
Nevertheless, it must be recalled that the Tribunal did not base its conclusion affirming the decision to refuse Mr Israelian a protection visa only on its finding about conscientious objection. It concluded that there would not be persecution of Mr Israelian if he returned to his country of nationality, only the possible application of a law of general application. The Tribunal is not shown to have made an error of law in that respect. (footnotes omitted, my emphasis)
I was also referred to the decision of the House of Lords in Sepet v Secretary of State for the Home Department [2003] UKHL 15. Reliance was placed upon the following passage from the judgment of Lord Bingham at paragraph 8:
8. 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 Canada (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 169, 171. But the applicants cannot, on the facts as found, bring themselves within any of these categories. Nor have they been found to have a rooted objection to all military service of any kind, or an objection based on religious belief. Their unwillingness to serve is based on their strong and sincere opposition to the policy of the Turkish Government towards their own Kurdish community. There can be no doubt that the applicants' fear of the treatment which they will receive if they are returned to Turkey and maintain their refusal to serve is well-founded: it is the treatment described in paragraph 5 above. The crucial question is whether the treatment which the applicants reasonably fear is to be regarded, for purposes of the Convention, as persecution for one or more of the Convention reasons. (my emphasis)
It is plain from the last sentence of the preceding passage that without a finding that the treatment the claimant reasonably fears is to be regarded as persecution for one or more convention reasons, an application based upon a conscientious objection to military service must fail.
The tribunal in the present case found that the applicant genuinely objected to the Chechen conflict and the Russian military methods of dealing with that conflict. It found, however, that whilst the applicant had those beliefs, there was no independent evidence to suggest that persons who object to the conflict were treated any differently or that any punishment imposed upon such objectors was enforced in a discriminatory manner. Those finding were open to the tribunal. Having made those findings, the claimant could not succeed on this ground.
I was not taken to any evidence which it was said would or should have led to a finding that the claimant was liable to be persecuted for a convention reason.
In the circumstances, I will dismiss the application.
I certify that the twenty-three (23) paragraphs are a true copy of the reasons for judgment of Jarrett FM
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