SZBKI v Minister for Immigration
[2005] FMCA 621
•11 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBKI v MINISTER FOR IMMIGRATION | [2005] FMCA 621 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in Ukraine due to conscription – whether the RRT erred in failing to consider a particular social group claim considered – no reviewable error found – application dismissed. |
| Migration Act 1958 (Cth), s.36 |
| Applicant S v Minister for Immigration (2004) 78 ALJR 854; [2004] HCA 25 Mijoljevic v Minister for Immigration [1999] FCA 834 Minister for Immigration v Israelian (2001) 206 CLR 323 |
| Applicant: | SZBKI |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG1854 of 2003 |
| Judgment of: | Driver FM |
| Hearing date: | 11 May 2005 |
| Delivered at: | Sydney |
| Delivered on: | 11 May 2005 |
REPRESENTATION
The Applicant appeared in person, assisted by Mr M P Cunningham, with leave
| Counsel for the Respondent: | Mr J D Smith |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Court directs that the name of the applicant is not to appear on the transcript of proceedings.
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1854 of 2003
| SZBKI |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) completed on 14 July 2003 and handed down on 12 August 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from Ukraine and had made a claim of persecution based on his liability for compulsory military service in that country. Relevant background facts are set out in written submissions prepared on behalf of the Minister by Mr Smith. I adopt as background paragraphs 4-10 of those written submissions:
The applicant is a citizen of the Ukraine who arrived in Australia on 13 August 2002. He lodged an application for a protection visa on 26 November 2002 and on 14 March 2003 a delegate of the respondent made a decision refusing to grant the applicant a protection visa. On 18 April 2003 the applicant applied to the RRT for review of that decision.
The applicant claimed to be a boxer and boxing trainer who was in Australia on a sports visa. He claimed that when he was in Australia his mother received notification that he had been conscripted into the Army in the Ukraine. He said that because he was a boxer he would be recruited into the special unit of the SBU to serve his 18 months conscription. He claimed to fear that when he was recruited as a young soldier he would be the victim of physical, and physiological abuse as well as moral degradation.
At the hearing held by the RRT on 20 June 2003 the applicant also claimed that he would be put into gaol if he returned late to the Ukraine.
RRT’s decision
The RRT accepted that the applicant was a boxer and a boxing coach but did not accept that boxers or boxing coaches were a particular social group in the Ukraine. Also, given the fact that the applicant was a boxer of some skill the RRT found that he would have no problems defending himself if the need arose upon his conscription.
In respect of his fear of conscription itself, the RRT found that was an enforcement of the law of general application and there was no evidence before it that those laws were enforced in any discriminatory manner. It dismissed the suggestion that he would be put into a special unit in the SBU as mere speculation in the absence of evidence to support it.
While the RRT accepted that there was a possibility that the applicant might suffer imprisonment because of his failure to respond to the conscription notice it found that such a penalty or sanction would be imposed because of what he had done rather than because of any Convention reason. Finally, the RRT found that there was no Convention reason for the harsh treatment meted out to recruits in the Ukrainian Army.
On the basis of these findings, the RRT concluded that the applicant did not have a well founded fear of persecution for Convention reason in the Ukraine and that he did not satisfy the criterion in s.36(2) of the Migration Act 1958 (Cth) (“the Migration Act”). Accordingly, it affirmed the decision under review.
The applicant relies upon his judicial review application filed on 9 September 2003 and the supporting affidavit filed on the same date. The grounds advanced are recited in paragraph 2 of Mr Smith's submissions which I adopt for the purposes of this judgment:
There are two grounds in the application:
a)the RRT failed to recognise that I belong to a social group who is opposed to compulsory military service. I did not belong to any political party because I was too young to participate in elections. At the time I left the Ukraine and arrived in Australia I was only 17 years old;
b)the reason for my fear of persecution is based on the Ukrainian law which gives me only two choices: accept compulsory military service or be gaoled.
At the outset of today's hearing the applicant sought an adjournment in order to obtain legal representation. He was supported in that application by Mr Patrick Cunningham, the President of the Sydney University Boxing Club. I rejected that application for the following reasons. First, the judicial review application has been on foot since 9 September 2003 and the applicant has had ample time to arrange for legal representation. Secondly, the applicant has at various times been assisted by two migration agents, although the applicant asserts difficulties experienced in dealing with both of them. Thirdly, the applicant participated in the Minister's panel advice scheme and received written advice under that scheme.
After some hesitation I permitted Mr Cunningham to assist the applicant as a lay advocate for the purposes of today's hearing. In doing so, I was influenced by the fact that the applicant is a young man of only 20 years of age. He represented himself before the RRT and Mr Cunningham was better able to put the applicant's thoughts orally than the applicant was himself, even with the assistance of a Ukrainian interpreter.
There is precedent concerning claims of persecution based upon conscription. In particular, I am bound by the decision of the High Court of Australia in Applicant S v Minister for Immigration (2004) 78 ALJR 854; [2004] HCA 25. In that case the majority of the Court made the following pertinent observations at paragraphs 80 to 82:
This Court has not yet considered, in any detail, whether compulsory military service can amount to persecution for the purpose of the Convention. The issue was touched upon in Minister for Immigration and Multicultural Affairs v Israelian[1], a case concerning an Armenian national who had sought to avoid being called up for military service in his home country. The primary issues in that appeal were whether - as the Minister argued - the Tribunal was obliged to make findings on material questions of fact and, if so, whether a failure to make such findings constituted reviewable error. The Minister succeeded. As a result, Mr Israelian's notice of contention - that the Tribunal had failed to consider whether he had a well-founded fear of persecution for reasons of his membership of a particular social group consisting of deserters and/or draft evaders - became relevant.
In our joint judgment, Gummow and Hayne JJ and I said that, even if Mr Israelian was a member of a particular social group comprising deserters or draft evaders, the Armenian law which operated to punish those who had avoided a call-up notice was one of general application. Accordingly, Mr Israelian would not be the subject of persecution. Gummow and Hayne JJ and I said[2]:
"[The Tribunal] 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."
[1] (2001) 206 CLR 323 (heard together with Minister for Immigration v Yusuf).
[2] Israelian (2001) 206 CLR 323 at 354-355 [97].
Gaudron J said[3]:
"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." (footnote omitted)
[3] Israelian (2001) 206 CLR 323 at 342 [55].
The majority then went on to distinguish the case before the Court from Israelian on the basis of the peculiar circumstances facing young, adult Afghan men facing conscription by the Taliban. Callinan J, while he was in dissent on that issue made a pertinent observation at paragraph 103 of the judgment. He said:
Previous authority fairly consistently holds that liability for conscription is not persecution for a Convention reason and with that holding I generally agree.
The footnote to that paragraph refers to a decision of Branson J in the case of Mijoljevic v Minister for Immigration [1999] FCA 834. At paragraph 23 of Her Honour's judgment she says:
This Court has on a number of occasions recognised 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 of persecution within the meaning of the Refugees Convention.
While I am not strictly bound by Her Honour's decision as a judgment of a single judge of the Federal Court not on appeal from this Court, judicial comity requires that I should follow it unless it is clearly wrong. It is not clearly wrong. On the contrary, I think that Her Honour’s decision was either consistent with or approved by the High Court decision in Applicant S. The legal conclusion I draw is that ordinarily a protection visa applicant cannot be accepted as a refugee based upon a fear of compulsory military service or the fear of the consequences of a failure to perform that service.
In the case before me today the applicant, with the assistance of Mr Cunningham, sought to assert that the RRT failed constructively to consider the applicant's claim. The applicant submits that the RRT failed to consider the applicant's claim as a member of a particular social group, namely, national boxing champions who are conscientious objectors. The applicant also asserts that the RRT erred in dealing with the risk of physical harm feared by the applicant.
I do have some concerns about the decision of the RRT. In particular, I have reservations about the presiding member's statement on page 66 of the court book:
I am of the view that a boxer, who has provided references from the Sydney University Sports Union and other Australians of the boxing fraternity, will have no problem defending himself if the need arose.
If that was a statement that an established risk of serious harm could be answered by reference to the physical prowess of an applicant, then I disagree with it. If, however, as submitted by Mr Smith, on behalf of the Minister, it was a statement that the risk of serious harm was remote because of the deterrent ability of the applicant then the statement would be unexceptionable. Even if there was an error in the reasoning of the presiding member it does not matter if there was no Convention nexus with the harm feared by the applicant.
In that regard the RRT was obliged to consider the claims made by the applicant. The claims made in writing by the applicant are set out on page 3 and on page 23 of the court book. In neither place was a claim of conscientious objection apparent. The applicant did claim to be a boxer and a boxer of some significant ability. The presiding member took the view that there was no such particular social group as "boxers"[4].
[4] see in particular page 66 of the court book.
On the material before me I am not persuaded that the presiding member's conclusion was wrong. On the other hand, conscientious objectors may constitute a particular social group in Ukraine. The presiding member did not make a firm finding on that issue. That appears to have been on the basis that the presiding member considered that conscientious objection to military service in Ukraine or pacifist views are not sufficient to attract the protection of the Convention (court book, page 67 at point 6). The presiding member did not consider that the Ukraine conscription statute discriminated against conscientious objectors. That statement is debatable by reference to the available country information, in particular at page 123 of the court book. Nevertheless, any error made by the presiding member on that issue is irrelevant if the applicant did not claim to be a conscientious objector. The primary submission made on behalf of the Minister is that no such claim was made.
While the applicant sought to assert otherwise before me today, I am not persuaded that any such claim was made before the RRT. No such claim was made on the written material expressly and neither did it necessarily arise. I do not have a transcript of the hearing before the RRT. In the circumstances, it is not open to me to speculate whether or not the claim might have been made orally at the RRT hearing. The applicant did concede to me in argument this afternoon that the particular social group he sought to advance in the proceedings today was not discussed at the RRT hearing.
On balance, I find that the applicant's claim was a claim of a fear of physical harm and adverse career consequences stemming from his liability to perform compulsory military service in Ukraine. It was not a claim of a principled objection to conscription. In my view, there was no constructive failure by the RRT to consider the claim as put by the applicant. In addition, the material before the RRT did not point to a discriminatory law or a discriminatory application of the law by reference to the applicant's claims as put.
I find that the decision of the RRT is free from jurisdictional error. Accordingly, I must dismiss the application.
On the question of costs, the application having been dismissed, Mr Smith seeks on behalf of the Minister a costs order fixed in the sum of $4,500 on a party/party basis. After some discussion between me, Mr Cunningham and the applicant, the applicant agreed to be guided by my assessment on the issue of costs. I accept that costs of at least $4,500 have been reasonably and properly incurred on behalf of the Minister in these proceedings when assessed on a party/party basis. The Minister was properly represented by counsel and an instructing solicitor today and the hearing has occupied what is, in effect, a full day. Mr Smith has also prepared written submissions and has been briefed by his instructing solicitor. The Minister was also represented at an earlier directions hearing.
I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $4,500.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 17 May 2005
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