SZMFJ v Minister for Immigration - [2008] FMCA 1155

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMFJ v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1155

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in Israel as a contentious objector to military service – no reviewable error found – application dismissed.

Applicant:

SZMFJ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1131 of 2008

Judgment of:

Driver FM

Hearing date:

12 August 2008

Delivered at:

Sydney

Delivered on:

12 August 2008

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents:

Ms S Sirtes

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,700.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1131 of 2008

SZMFJ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was handed down on 3 April 2008. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The applicant is from Israel and had made claims of persecution by reference to his objection to military service. The background facts relating to the applicant's claims and the Tribunal decision on them are conveniently summarised in the Minister's written submissions filed on 5 August 2008. I adopt as background for the purposes of this judgment with minor amendments paragraphs 1 through to 7 of those written submissions:
The applicant is a 23 year old Israeli citizen who arrived in Australia on 12 November 2006 (court book (“CB”) 14).
On 8 November 2007 the applicant lodged an application for a Protection (Class XA) Visa with the Department of Immigration & Multicultural Affairs (CB 1 to 25) together with a separate statement claiming conscientious objection from compulsory military service (CB 26 to 29).
After the Minister’s delegate refused the applicant’s protection visa application on 29 November 2007 (CB 42 to 53) he applied to the Tribunal on 27 December 2007 to review that decision (CB 54 to 57).
On 14 January 2008 the applicant was invited to give evidence at a hearing of the Tribunal and was informed by that invitation that the Tribunal was unable to make a decision in the applicant’s favour based on the material provided to date (CB 60 to 61).
On 10 March 2008 the applicant attended a hearing of the Tribunal at which he gave evidence with the assistance of a Hebrew interpreter (CB 63 and 81.4).
On 3 April 2008 the Tribunal handed down a decision, made on 12 March 2008, affirming the decision of the delegate not to grant the applicant a protection visa (CB 77 to 88).
The Tribunal’s decision
The Tribunal:
a)accepted that the applicant was a national of Israel (CB 82.7);
b)summarised the relevant case law and commentary in relation to conscientious objection and laws of general application (CB 82.8 to 85.2);
c)found that the applicant was not claiming to fear persecution by reason of his race, religion or nationality. Accordingly, the Tribunal considered the grounds of political opinion and membership of a particular social group (CB 83.7);
d)noted that the applicant’s response as to why he did not wish to perform military service was, inter alia, a desire to avoid personal harm, not wishing to harm anyone else and disagreement with some actions of the Israeli military (CB 84.5);
e)noted that the applicant had been able to leave Israel legally (CB 84.5 and 85.7);
f)found that, whilst in appropriate cases a person my have a sufficiently strong conviction, the suppression of which might constitute persecution, the Tribunal was not satisfied that the applicant’s aversion to military service would give rise to a real chance of persecution for his actual/imputed political opinion (or any other Convention ground) (CB 85.8);
g)found that, based on the applicant’s own evidence, the authorities in Israel had been quite reasonable and were without (to date) qualities of arbitrariness, urgency, discrimination or malice (CB 86.1);
h)was satisfied that the laws of conscription in Israel are not inherently discriminatory and that the Israeli authorities were not motivated by any Convention grounds vis a vis the applicant (CB 86.2); and
i)considered whether increasing tensions between Israel and Hamas of the 2006 situation with Lebanon have led to a ‘hardening attitude to pacifists’ by the Israeli authorities. The Tribunal accepted that such a change in position was plausible but that it did not have evidence which suggested that there was any additional targeting of pacifists for a Convention reason (CB 86.6).
These proceedings began with a show cause application filed on 6 May 2008. The applicant continues to rely upon that application. I received as evidence his affidavit filed on the same day as the application and the court book filed on 3 July 2008.
The applicant asserts that he refused to enlist in the Israeli Defence Force on a political ground. He states that the Tribunal agreed that he would be arrested on his return to Israel but asserts that the Tribunal did not think that was a reason to give him protection in Australia.
In his oral submissions, the applicant asserted that he would not return to Israel and that he would not serve in the Israeli Defence Force. He wishes to avoid the risk of being a victim of violence that he would be subject to if he served with the Israeli Defence Force or even if he lived in Israel. That fear, however, does not of itself bring the applicant within the purview of the Refugees Convention.
The applicant is mistaken in thinking that the Tribunal found that he would be arrested on his return to Israel. The Tribunal stated in its reasons at CB 86 that it did not accept that the country information available to it pointed to a risk of the applicant being imputed with an adverse political opinion should he return to Israel. The Tribunal found, based upon the evidence before it, that if the applicant were to be arrested on return an essential and significant reason for such arrest or any subsequent treatment would not be one of the grounds in the Refugees Convention. The Tribunal appeared to accept that, although the applicant's objections to military service centred upon his fear of physical harm, he might be a conscientious objector. However, the Tribunal found that, based upon his own evidence, it appeared that the Israeli authorities had been relatively lenient towards him. The Tribunal found that the Israeli law in relation to compulsory military service was a law of general application that would not be applied in a discriminatory fashion in relation to the applicant. The Tribunal did not find any Convention nexus with any consequence that may flow from the applicant's objection to military service in Israel.
The applicant contended in his oral submissions that the Tribunal did not understand the reality of the situation in Israel. The applicant contended that what happens in practice is quite different from what the written law may state. The applicant believes that he may be subject to arbitrary and harmful treatment. Those submissions, however, attack the merits of the Tribunal decision which is beyond the scope of these proceedings.
Reasonable minds can differ on the question of whether the applicant's fear of harm in relation to his objection to military service was well‑founded for a Convention reason. In my opinion, the conclusions reached by the Tribunal on that issue were open to it on the material before it. I can see no jurisdictional error in the Tribunal's resolution on that issue.
I will order that the application be dismissed.
It is open to the applicant to invite ministerial intervention should he seek a more favourable decision. I also advised him of his rights of appeal against my decision.
The application having been dismissed, costs should follow the event. The Minister seeks an order for costs fixed in the sum of $4,700. The applicant sought the opportunity of work so that he could pay the costs. That is a matter he could take up with the Minister's Department. I am satisfied that costs of not less than $4,700 have been reasonably and properly incurred on behalf of the Minister, assessed on a party and party basis. I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application fixed in that amount.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 15 August 2008