SZDDF v Minister for Immigration - [2006] FMCA 236

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDDF v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 236

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error.

Migration Act 1958 (Cth)

Applicant:

SZDDF

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG903 of 2004

Judgment of:

Barnes FM

Hearing date:

9 February 2006

Delivered at:

Sydney

Delivered on:

9 February 2006

REPRESENTATION

Applicant:

In Person

Counsel for the Respondent:

Ms L. Clegg

Solicitors for the Respondent:

Sparke Helmore

ORDERS

That the Refugee Review Tribunal be joined as the second respondent.
That the application is dismissed.
That the applicant pay the costs of the first respondent set in the amount of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG903 of 2004

SZDDF

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 16 March 2004 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa. The applicant is a citizen of Israel who arrived in Australia in June 2002. In December 2002 he lodged an application for a protection visa. The application was refused and he sought review by the Tribunal. He attended a Tribunal hearing.
The applicant's claims are set out in his protection visa application, in his application for review and in a written statement provided to the Tribunal. They were elaborated on at the Tribunal hearing. In his protection visa application he claimed to be very left wing and to fear going back into the army reserve and terror in Israel. In his review application he claimed to be a member of a social group not widely accepted in Israel, being an outspoken military opponent. In a written submission he claimed to fear that he had a real chance of being harmed if he returned to Israel either by the military, the police or other Israeli citizens as a result of his anti-Israel and pro-Palestinian political beliefs, that the terror in Israel affected him morally and economically and that his left wing views did not fit in with most people there. In his submission to the Tribunal he explained that he had undertaken military service and during this military service voiced his political views by making strong protestations about the Israeli occupation of and Jewish settlements in the Gaza Strip. He claimed that he had expressed his anti-Israeli policy beliefs and he had been severely beaten up as a traitor. He had not refused to obey orders but when he complained about his treatment to his commanding officer he had been slapped and the officer told his lieutenants to get him out of his sight before he killed him. He claimed that he was told that he would be killed if he returned to another reserve camp and that he would not be safe anywhere in Israel. He claimed that he had reported this to the police but that the police had dragged him across the counter, punched him, beaten him severely and told him to keep out of their way or they would also harm him for his beliefs.
The applicant claimed that he had a political opinion in contrast to the people of Israel and the authorities, that his extremely pro-Palestinian political views had made him an outcast and a security risk in danger of being killed or seriously harmed by fellow Israelis and that the military and police would not protect him and would possibly assist in, or turn a blind eye to, any danger he may be in.
In his claims to the Tribunal, the applicant stated that the military had a right to and may recall him for reserve duties and that he may be deliberately placed in harm’s way because of his political views and outspoken political opinion. According to the Tribunal reasons for decision he conceded in the course of the Tribunal hearing that he may receive a medical exemption from active military service having received an exemption from active service in the past.
The applicant described himself as a selective conscientious objector, as he objected to performing military duties in the occupied territories. He also claimed, according to the Tribunal, that he had been assaulted several times by ordinary Israelis and by the police and military for being vocal about political views in public, at social gatherings and synagogue. He claimed to fear that if he returned to Israel he would be killed or seriously harmed by Israeli Jews and Arabs who were anti-Palestinian due to his extreme pro-Palestinian political opinion and that he did not wish to return to the country due to the current state of tension and fighting between the Palestinians and the Israelis. He claimed to fear serious harm and even death because of his political views and opinions.
The Tribunal summarised the applicant's written claims and outlined its account of what occurred in the Tribunal hearing. There is no other evidence before the Court as to what occurred in the Tribunal hearing. It also outlined independent country information in relation to the situation in Israel, the government's policy on conscription and military service and its response to conscientious objectors.
In its findings and reasons the Tribunal stated that the applicant had claimed to fear persecution on the basis of his membership of a particular social group and on the basis of actual and imputed political opinion arising out of his leftist pro-Palestinian political opinions and his stated objection to performing reserve military duty in the Occupied Territories. It had regard to his concession at the Tribunal hearing that certain other concerns he had about the overall situation and his prospects in Israel did not fall within the scope of persecution within the meaning of the Convention and the fact that he did not persist with those claims.
The Tribunal considered the applicant's claims from what it described as the related but distinct perspectives of (a) his general political attitudes to the situation in Israel (excluding the issue of prospective military service) and (b) the particular circumstances associated with his future obligation to perform reserve duty, possibly in the Occupied Territories.
In relation to the first of those categories it accepted that the applicant had, as he had claimed, left-wing political views and was critical of the government's policy towards the Occupied Territories. However it found that the applicant’s political views fell within the broad spectrum of current Israeli political debate and was satisfied that possession and articulation of such views would not of themselves attract the adverse attention of Israeli authorities.
On the basis of the applicant's own account of his military service, his general support for Israeli security policy, his employment in the entertainment industry and prolonged overseas travel the Tribunal found that the applicant’s political interests had not played an important part in his life. Nor had they been pursued with such tenacity as to gain prominence in the past or be likely to do so in the reasonably foreseeable future.
The Tribunal considered the applicant's claims to have been involved in political altercations and addressed his view of the independent information in relation to the existence of political freedom in Israel. It considered that his claim that the Israeli military and police “would not protect me and may possibly assist or turn a blind eye to any danger I may be in” was in stark contrast to his assertion in his protection visa application that he was sure the Israeli authorities were doing their best to protect all Israelis. The Tribunal recorded that when asked about his personal experience of adverse treatment on the basis of his political opinion, the applicant had referred to arguments while on military duty in the Occupied Territories which he had agreed did not result in serious harm. The Tribunal noted that the written submission to the Tribunal included reference to his having been slapped and threatened by his commander in the army reserves, but it preferred the applicant’s account at the hearing. It found that he was involved in incidents of minor significance indicative of heated personal spats rather than of persecutory conduct on the part of Israeli authorities.
The Tribunal summarised these findings. While it accepted the applicant had a strong leftish political opinion, it was not satisfied that the applicant's political opinions were so ‘extreme’ in nature or held with such commitment and vigour as to give rise to fears about the reactions of Israeli authorities if such opinions were articulated or manifested. The Tribunal accepted independent information and found that the applicant's personal experiences indicated that the possession and articulation of such political opinions in Israel were not a basis for persecution in Israel.
It found that the applicant’s claim to be a member of a social group ‘not widely accepted in Israel and being an outspoken military opponent’ was apparently a reference to his membership of a group consisting of other persons sharing his political views. However it was not satisfied on the facts and circumstances before it that the mere possession of leftish ‘pro-Palestinian’ views in Israel was a characteristic which united those individuals such as to set them apart as a social group from the rest of the Israeli society or that they were recognised within Israeli society as such.
The Tribunal then considered the applicant's claims relating to his fears about the circumstances associated with his obligation to perform reserve duties. It accepted he had performed past military service and undertaken periodic reserve duty, that when called up to perform duties in the Occupied Territories in June 2001 his refusal led to abuse from army personnel but that he eventually gained an exemption on medical grounds due to a 1992 back injury. It outlined his claims to be a ‘selective conscientious objector’ and his fears in that regard, noted authority to the effect that compulsory military service or punishment for non-service do not of themselves constitute persecution particularly without evidence of selectivity of enforcement and the need for a Convention nexus.
The Tribunal accepted the applicant’s claims to be opposed to Israel’s policy in the Occupied Territories and recognised the existence in Israel of many selective conscientious objectors. However it was not satisfied on the evidence before it that the applicant would be required to perform military service in violation of his political opinion or face the prospect of punishment. It noted that in 2001 the applicant had obtained a medical exemption from reserve duties in the Occupied Territories based on a 1992 injury. It was satisfied that he would be able to avail himself of such a medical exemption, based on its recognition over the past ten years, the continued existence of the medical condition and the relevant provisions of Israeli law and in the absence of identified evidence to indicate the authorities would be able and motivated to treat the applicant adversely with respect to this issue. The Tribunal found no more than a remote chance that the applicant, if called up to reserve duty on return, would not be able to avail himself of medical exemption from active duty (in the Occupied Territories or elsewhere).
Further it found the applicant's political views regarding Israeli policy in the Occupied Territories and his commitment to a selective conscientious objection to be not so strong that he would actually refuse to perform reserve duty. It was not satisfied that the performance of reserve duty itself would be such as to amount to persecution. It gave reasons for the findings about the applicant’s interest and conviction based on the evidence as to his past and current acts and his knowledge of events in Israel. It found that his stated intention that he would refuse to serve in the future was a mere assertion, not supported by his past and current acts. The Tribunal also found that the applicant's delay of some six months in applying for a protection visa in Australia suggested that the prospect of having to perform reserve duty in Israel and his fear of persecution should he refuse to do so were not prominent and urgent concerns for him.
The Tribunal was satisfied the applicant would be able to secure a medical exemption from reserve duties in the Occupied Territories, that he did not have a genuinely strong commitment to selective conscientious objection such that he would refuse to perform reserve duties if there were no exemption and that his compliance with any such orders would not be such a serious affront to his political beliefs such as to amount to persecution. It found that there was no more than a remote chance as a result of any call-up order for reserve duty that the applicant would come to the adverse attention of the Israeli authorities or otherwise suffer persecution. Thus it found it unnecessary to consider issues such as the nature of Israel’s military service laws and whether selective conscientious objectors in Israel constituted a particular social group.
The Tribunal concluded in summary that it was satisfied that if the applicant returned to Israel he would be able to continue to express his political opinions freely. Although it accepted that the Israeli authorities could not provide absolute protection during heated political debates, the Tribunal was satisfied that the State would provide adequate and effective protection should the need arise. The Tribunal also found that, given the availability of the medical exemption, there was no more than a remote possibility that the applicant would be required to perform reserve duty in the Occupied Territories. In any event it found that he would not refuse to perform such service if required to and that the performance of such service itself would not amount to persecution. On this basis it found that the applicant had no well-founded fear of persecution in the reasonably foreseeable future for a Convention-related ground and was not a refugee.
The applicant sought review of the Tribunal decision. He relies on an amended application filed on 6 September 2004 which raises a generally expressed ground and five particulars.
The ground is that “Having accepted the applicant is a credible witness and that his claim can be categorised as falling within the definition of a refugee on the grounds of his political opinion, (opposition to the Israeli occupation of the Occupied Territories) the Tribunal fell into an error of law in that its decision constituted a constructive failure to exercise jurisdiction and generally exceeded its jurisdiction.” The first contention is that the Tribunal exceeded its jurisdiction in that it had no factual basis to determine that the applicant's earlier medical condition would provide him with exemption from service in the Occupied Territories if he returned to Israel. Alternatively it is contended that the Tribunal did not have the relevant expertise to exercise such an opinion.
Insofar as it is contended that there was no evidence to support the Tribunal’s finding in relation to whether the applicant would be able to avail himself of a medical exemption, such a ground has not been established. The Tribunal had evidence before it in relation to what had occurred to the applicant in the past, in particular in relation to his last reserve duty in 2001 when he gained a medical exemption from reserve duty in the Occupied Territories based on a 1992 injury (which had led to a transfer from active fighting service to guard duties) and his concession that it would be open to him to seek a further medical exemption from reserve duty if he were called up again. The Tribunal had regard to the recognition of the medical exemption over ten years, the continued existence of the condition and the relevant law and the absence of identified factors to indicate that the authorities would be able and motivated to treat the applicant adversely with respect to this issue. It also had regard to the applicant’s argument that these was ‘no guarantee’ that such an exemption would be granted again. It cannot be said that there was no evidence to support the Tribunal findings.
While the applicant clearly disagrees with the Tribunal conclusions, that is not a matter that establishes jurisdictional error. It was open to the Tribunal to reach the conclusion that it did on the evidence before it.
Insofar as the contention that the Tribunal did not have the relevant ‘expertise’ to express such opinion involves a suggestion that the Tribunal should have made further inquiries about the applicant's condition or should have sought further evidence in relation to such matters, it is for the applicant to put material before the Tribunal and for the Tribunal to make a determination on the material before it. This is not a case in which it has been established that the Tribunal was under an obligation to conduct further inquiries or to obtain further information. These contentions do not establish jurisdictional error.
The application also contends that there was no factual basis for the Tribunal to come to the conclusion that there was only a remote chance of being called up for service in the Occupied Territories. This, according to the application, was contrary to the applicant's own evidence that call-up notices had been received and that he had made it known to the authorities that he was a conscientious objector and to country information referred to by the Tribunal in relation to the obligations of reserve service in Israel and treatment of reservists refusing to serve in the occupied territories.
It is, however, necessary to have regard to the actual findings of the Tribunal. Contrary to the contention in the amended application, the Tribunal did not find that there was only a remote chance of the applicant being called up for service in the Occupied Territories, but rather that there was no more than a remote chance that if called up to reserve duty, he would not be able to avail himself of a medical exemption from active duty (in the Occupied Territories or elsewhere). The Tribunal reiterated that it was satisfied the applicant would be able to secure a medical exemption from reserve duty in the Occupied Territories. It proceeded on the basis that a medical exemption would not arise until after an applicant had in fact been otherwise called up to reserve duty. Its approach was not ‘contrary’ to the applicant’s evidence about call-up notices or reserve service. Its finding in this respect was that there was no more than a remote possibility that the applicant would be required to perform reserve duty in the Occupied Territories.
The Tribunal's findings in this respect were open to it for the reasons it gave as set out above. The independent country information in relation to treatment in reserve service and the treatment of conscientious objectors did not compel a contrary conclusion. In any event, the weight to be given to particular items of country information is a matter for the Tribunal.
It was contended that there was no evidence before the Tribunal to conclude that the applicant would not refuse military service and that his evidence was that he would refuse military service. However, the Tribunal had regard to the applicant's stated intention that he would refuse to serve in the future, but found it to be a mere assertion not supported by his past or current acts. It found that the applicant did not have a genuinely strong commitment to selective conscientious objection such that he would refuse to perform reserve duty if an exemption were not available. In other words, it considered the applicant's claims in this respect but did not accept his claim as to his future intention, based on the other evidence before it. Moreover the Tribunal went on to make a further finding that the applicant’s compliance with any such orders would not be such a serious affront to his political beliefs as to amount to persecution. No jurisdictional error is established on this basis.

It was also contended that the Tribunal's finding that the applicant would be afforded adequate and effective state protection ‘passed over’ the applicant's claims that it was the State (the police and army) that harmed conscientious objectors.
The Tribunal finding in relation to state protection is set out after its conclusions in relation to both the applicant's general political attitude and his obligations to perform reserve duty in a paragraph of the decision that commence “In Summary” and which addresses all the essential aspects of the applicant's claims. Reading the decision fairly and as a whole it is clear that finding about State protection was made in relation to the applicant's more general claims concerning his ability to express his political opinions freely. As is apparent from the context in which this finding is set out, the Tribunal accepted that the authorities could not provide absolute protection during heated political debates, but nonetheless was satisfied the State would provide adequate and effective protection should the need arise. Earlier in its reasons for decision the Tribunal had dealt with the applicant’s claims about being conscientious objector. It had, however, concluded that the applicant would not attract adverse attention from the authorities because of these concerns, based on his own evidence and independent country information in the expression of his political opinion. It did not accept his assertion that he would refuse to serve (and hence require protection as a conscientious objector). No jurisdictional error is established in the manner contended.
The final ground in the amended application is that “The Tribunal's conclusion that ‘being slapped and threatened by his commander in the army reserves’ was not an adequate evaluation of that issue and, further that there was no consideration of the applicant's evidence that when he reported the abuse he received in the army to the police he was dragged across the counter, punched and beaten.”
The Tribunal outlined the applicant's claims in this respect in its description of his claims and evidence. While it is the case that to outline claims is not sufficient, as the Tribunal must also address the integers or essential elements of an applicant's claims, in this instance the Tribunal dealt with the claims in its reasons for decision. In particular it addressed the applicant’s evidence at the hearing in response to the Tribunal's query about his personal experience of adverse treatment on the basis of his political opinion and his reference to ‘arguments’ on military duty. It noted that his statement to the Tribunal had included reference to his having been slapped and threatened by his commander (the event which he claimed he had reported to the police) but observed that the applicant had agreed at the hearing that his personal experience did not result in serious harm. It found that it preferred the applicant's account of adverse treatment that he had given at the hearing and on that basis found that he had been involved in incidents of ‘minor significance’ indicative of heated personal spats rather than persecutory conduct on the part of the Israeli authorities. This finding sufficiently addressed his earlier claim about the commander and subsequent police mistreatment.
It has not been established that the Tribunal failed to have regard to the integers of the applicant's claims or failed to have regard to relevant considerations in a manner constituting jurisdictional error. The Tribunal is not required to repeat or traverse every item of evidence and make a finding of fact about each factual allegation. The rejection of the written claims of mistreatment dealt adequately with this aspect of those claims.
In the hearing today the applicant repeated his claim to fear persecution should he return to Israel, particularly if called up for reserve service and if he refused to go into the Occupied Territories because of his beliefs. However, as I indicated to the applicant, the issue that he takes with the merits of the Tribunal decision does not establish a jurisdictional error providing a basis for judicial review. As no jurisdictional error has been established, the application must be dismissed.
In written submissions the respondent sought that the Tribunal be joined as the second respondent. I will make such an order and I will hear submissions in relation to costs.

RECORDED : NOT TRANSCRIBED

The applicant has been unsuccessful. He told the Court that he has not been able to work and has no funds. However, his lack of funds and inability to work are not reasons for not awarding costs, although they may be matters taken into account by the first respondent in determining when and how to seek to recover those costs. The amount sought is appropriate in light of the nature of this and other similar matters.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 6 March 2006