SZQTX v Minister for Immigration
[2012] FMCA 781
•11 September 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQTX v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 781 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal misinterpreted the applicant’s claim to be a member of a particular social group or to be imputed with a particular political opinion. |
| Migration Act 1958 (Cth), s.91R |
| Applicant N 403 of 2000 v Minister for Immigration & Multicultural Affairs [2000] FCA 1088 Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303; [2010] FCAFC 51 Ramirez v Minister for Immigration and Multicultural Affairs (2000) 176 ALR 514; [2000] FCA 1000 WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 |
| Applicant: | SZQTX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2415 of 2011 |
| Judgment of: | Barnes FM |
| Hearing date: | 27 June 2012 |
| Delivered at: | Sydney |
| Delivered on: | 11 September 2012 |
REPRESENTATION
| Solicitors for the Applicant: | Michael Jones, Solicitor |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2415 of 2011
| SZQTX |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
These proceedings
This is an application for review of a decision of the Refugee Review Tribunal dated 16 September 2011 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant filed the application on 21 October 2011. At the hearing the solicitor for the applicant indicated that he sought to rely on an amended application in which the ground in the application was amended as had been foreshadowed in pre-hearing written submissions. Leave was granted for the applicant to file an amended application after the hearing. It appears that no amended application was filed. However the proposed amended ground was addressed in both written and oral submissions by each of the parties and both the application as filed and the proposed amended ground have been considered.
The ground in the application (with the additional words to be included in the foreshadowed amended application in bold print) is as follows:
The Tribunal fell into jurisdictional error because it misinterpreted the Applicant’s claim to be a member of a particular social group or to be imputed with a particular political opinion as a conscientious objector to military service.
Particulars
The Tribunal accepted that the applicant would have imputed to him certain political opinions and would be treated as a member of a particular social group of conscientious objectors which would expose him to harm amounting to persecution on return to his country of nationality. Despite this, the Tribunal determined that the applicant was not a refugee because his sole reason for not wishing to undertake military service was a fear of violence and firearms, and that the authorities would quickly realise this and therefore would change their view and not persecute him. The Tribunal applied an interpretation of the concept of conscientious objection that was unreasonably narrow and theoretical, requiring a moral or religious foundation, without considering the applicant’s claim that his fear of participating in violence was itself a conscientious belief that violence was wrong in all situations.
Background
The applicant, a citizen of Turkey, arrived in Australia in February 2009 as the holder of a student visa. He applied for protection in September 2010. In his protection visa application he claimed to fear persecution on the grounds of his political beliefs. He claimed that he had obtained a “military service deferment on the basis of wanting to continue…studies overseas”, but that on return to Turkey he would be required to commence his military duties and that he did not wish to do so as he “maintain[ed] a conscientious objection, based on [his] political opinion”. In a statement accompanying his protection visa application he claimed that his “political objection stem[med] from the Turkish authorities past and ongoing mistreatment of minority groups including the Kurdish and Armenian minorities”.
The applicant claimed to “object to the current military campaign” in Turkey, which was said to be “aimed at displacement and cultural and religious irradiation of minorities” and also to the “disproportionate use of military forces to achieve such goals”. He claimed to fear that “[i]f the basis of [his] objections were to be revealed to senior officers [he] would be attributed with an adverse political opinion and made to suffer disproportionate mistreatment…tantamount to persecution”.
The Departmental interview
The applicant attended a Departmental interview. The Tribunal recorded that in that interview the applicant claimed he was seeking protection because he was “scared of going to military service” and that this was “the most important reason”. He also claimed that he did “not feel comfortable living in Turkey” because of religion as he did “not choose to go to the mosque and observe the ritual”. He claimed that Turkey’s politics were influenced by religion. He did “not like the attitude of people towards him”. He also claimed that he liked to wear an earring, but that in Turkey this would lead to him being treated as if he were gay.
When asked why he did not want to complete his military service the applicant was recorded as stating that “his only fear [was that] he hates fighting, he does not like it and does not like to hear the sound of weapons and shooting”. He said he could not shoot at anyone and could not kill anyone.
The Tribunal also recorded that when the delegate asked the applicant what being a conscientious objector to military service meant to him, the applicant had first said that he did not understand and then that it did “not make any sense to him to do [military service] because he [did] not want to do it” and that it was “a kind of job that he [did] not like”. When asked how his objection to military service amounted to a claim under the Refugees Convention, the applicant claimed that he needed protection because if he refused to engage in military service he would be put into prison and “harmed and persecuted”. When asked if “his feelings about Kurdish or Armenian people had any bearing on his objection to military service”, the applicant was recorded as saying that he could not “think badly of anyone and [could] not be fighting against anyone”, that “in the army they do treat Kurdish people badly who [we]re doing military service” and also that the army sent people to fight against Kurdish people and that he did “not want to fight with anyone, not just Kurdish people”.
The applicant’s representative made an oral submission to the Department to the effect that the applicant had “a deep seated opposition to all forms of violence” and did “not want to be put in a situation where he may be subjected to combat given the internal conflicts with Turkish forces”. He was also said to object to the military service based on “his view on the government campaign of ethnic cleansing of minority groups”. It was contended that if he were to express his views “he would be imputed with an adverse political view and made to suffer gross human rights abuses” for reason of his political view. The adviser also claimed that the applicant “may be imputed with being a homosexual given the way he dress[ed]”.
The Tribunal hearing
The Tribunal’s decision contains a detailed summary of the applicant’s evidence at the Tribunal hearing. This is the only evidence before the Court of what occurred in the Tribunal hearing. Relevantly, the Tribunal recorded that when it asked the applicant why he did not want to do military service he said:
Because I am someone who is afraid of war, against violence and against guns that’s why I don’t want to do military service.
He also said he was against violence and guns because:
I am just a person who is afraid of the sound of guns and of violence. I am very afraid of these kinds of things.
The applicant explained that his brother and friends “told him about how they fought against terrorists and saw their friends being shot” and that people had been “punished for refusing to pick up guns and fight”.
When asked if there were any other reasons, apart from being afraid, why he did not want to do military service, the applicant was recorded as saying:
The reason I don’t want to go the army is because I am afraid of guns and I am afraid of hurting someone and also I am afraid of violence and also I am afraid that I’ll be punished for refusing to go to the army.
He claimed to fear that he could receive “long term gaol sentences” and be mistreated if he did not go into the army, but that he would nonetheless refuse to do military service “because I’m very afraid of holding a gun and hurting someone”. When asked what “the basis of his belief that he [did] not have the right to hurt someone” was, the applicant said “[i]t’s just a fear I have”. When given the opportunity to say anything further about his reasons for refusing to do military service, the applicant said there was nothing else he wished to say.
A friend of the applicant also gave evidence to the Tribunal. When asked if the applicant had ever said how he felt about having to do military service, the friend said that the applicant was:
… afraid because he is not the type to hold a gun or hurt anyone and Turkey is attacking the Kurdish and he doesn’t really want to hurt anybody, he just wants to be in peace. If you don’t follow their orders they will punish you for it.
The Tribunal recorded that the applicant’s representative asked the Tribunal “to discuss with the applicant the witness’ evidence that the applicant was against the violence about the minority Kurdish population in Turkey (sic)”. The Tribunal asked the applicant to “explain his views on that topic and in particular how it relat[ed] to his military service obligation”. The applicant referred to the long-standing conflict between the Turkish people and the Kurdish people, claimed he had Kurdish friends and that he was discomforted by the absence of an agreement between Turkey and the Kurdish people and that he wanted an agreement “without fighting or war”. He then stated:
I am someone who is against war and I want this conflict to be resolved without violence.
The applicant reiterated that he did not want to do military service. He also claimed other Turks looked at him “strangely” because he associated with Kurds and also that he was not “able to wear an earring without people looking at him and judging him”. The Tribunal “asked the applicant if the fact that he [wa]s friends with Kurds informed his opinion about going into the military”, to which he responded:
Well, the real reason is that I am afraid of guns, war, violence and spilling of blood. This is the real reason.
The Tribunal decision
In its findings and reasons the Tribunal found that it was apparent from the applicant’s evidence that his stated refusal to engage in compulsory military service was “motivated by his fear of guns, violence and bloodshed”. The Tribunal had regard to the fact that at the hearing the applicant did not voice claims based on political opinion and objections to the disproportionate use of military force to “irradiate” minorities, as had been set out in the statutory declaration accompanying his protection visa application, or mention his views on ethnic minorities or his friendship with Kurds of his own volition. It was only after his witness mentioned this topic and his adviser asked the Tribunal to question him about it, that this topic was canvassed. Further, the Tribunal had regard to the fact that when it asked the applicant to explain if his friendship with Kurds “informed his views on performing military service” he stated that the “real reason” was that he was “afraid of guns, war, violence and spilling of blood”. The Tribunal found that the applicant did not “genuinely hold a political opinion in opposition to Turkey’s military activities against minorities” (as had been claimed in the protection visa application).
The Tribunal had regard to the fact that while at the hearing the applicant had said that “he felt he did not have the right to harm another person”, when the Tribunal asked him why he held that belief he said “[i]t’s just a fear I have”. The Tribunal found that:
[The applicant did] not genuinely hold pacifist beliefs for reasons of morality or conscience. He is simply afraid of doing something which he does not like.
The Tribunal also found that to the extent the applicant had expressed any such views before the delegate, it preferred his oral evidence at the Tribunal hearing.
The Tribunal accepted that, notwithstanding that the applicant “lacks any political or moral beliefs for opposing military service”, he was “subjectively afraid of performing military service and [would], as he ha[d] said, refuse to engage in it”. It also accepted that “a refusal to perform military service [would] lead to a real chance of him being charged and imprisoned in Turkey” and that imprisonment was a type of serious harm for the purposes of s.91R(1) of the Migration Act 1958 (Cth). However the Tribunal found that the Turkish laws relating to compulsory military service were laws of general application and that the punishment feared by the applicant would not be imposed discriminately for a Convention reason.
In reaching this conclusion, the Tribunal reiterated that it had found that the applicant’s objection to military service was “based on a dislike or fear of military combat”. It found that he would not therefore:
…refuse to perform military service on the basis of actually being a member of a particular social group of “conscientious objectors” or a political opinion of being a conscientious objector or otherwise on the basis of his race, nationality, political opinion or religious opinion.
However based on country information the Tribunal accepted the applicant’s claim that he would be imputed with a political opinion adverse to the Turkish government by refusing to perform military service. It found that the government’s treatment of high profile conscientious objectors demonstrated its desire to maintain its military service program. For the same reason the Tribunal accepted that the applicant would be imputed to be a member of the particular social group of “conscientious objectors” for reason of simply refusing military service as well as imputed with a political opinion of conscientious objection. Relevantly, the Tribunal expressed the view (consistent with Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387; [2004] HCA 25) that the members of the particular social group of conscientious objectors could be recognised because members of the group “share the attributes in common of moral, religious or political objection to bearing arms”, attributes which are “not a shared fear of persecution” and because “the possession of those attributes distinguish[ed] the members from male Turkish citizens society at large who perform military service”.
The Tribunal pointed out that “mere membership of a particular social group or having imputed political opinion by an applicant facing the prospect of harm…[wa]s not sufficient to bring that person within the Convention definition”. It referred to authority to the effect that liability for conscription, even of conscientious objectors, would not of itself found a Convention claim and observed that:
[It was] not sufficient that there be a nexus between feared persecution and a Convention ground if there [wa]s no relevant “motivation” on the part of the alleged persecutors.
After discussion of cases in relation to the concept of “for reasons of” the Tribunal expressed the view that:
…[while] the reason for the [applicant] avoiding military service may be relevant to determining whether punishment is attributable to a Convention reason…it would be contrary to established authority for it to be the sole determining factor, irrespective of whether the law is enforced in a discriminatory manner for a Convention reason.
The Tribunal did not accept that the applicant’s recruitment for compulsory military service, or any punishment he may face for refusing to perform compulsory military service, constituted persecution, as such consequences were said to “lack the necessary discriminatory conduct on the part of the Turkish authorities who [we]re applying a law of general application”.
The Tribunal continued:
In relation to [the applicant] being imputed to be a member of the particular social group of “conscientious objectors” or imputed political opinion adverse to the Turkish government, the Tribunal is not satisfied that such imputation would survive his initial contact with the Turkish authorities, and while he initially may face a risk of serious harm on this basis (which would not be persecution for the reasons already given) the Tribunal, having found that he is not a conscientious objector or genuinely politically motivated to oppose compulsory military service, finds that any ongoing risk of harm such as that the country information shows may be experienced by genuine conscientious objectors or objectors motivated by genuine political opinion, who continue to voice their objection/opinion, is remote because the applicant would not voice such objection/opinion.
The Tribunal addressed the applicant’s claim that he was “perceived adversely in the community for associating with Kurds”, but had regard to the absence of any evidence of past harm, any claim that he would suffer more serious harm or any explanation as to who the authors of harm might be. The Tribunal was not satisfied that the applicant subjectively feared persecution because he knew Kurds.
Further in the absence of evidence of past harm, any claim that he would suffer serious harm or any explanation as to who the authors of such harm might be the Tribunal was not satisfied that the applicant subjectively feared persecution because he liked to wear an earring. Hence it was not necessary to address whether there was any Convention nexus for any such fear or whether any such fear was well-founded. The Tribunal was not satisfied that there was a real chance of the applicant facing persecution for this reason or that he had a well-founded fear of persecution for this reason.
The Tribunal was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention.
Whether the Tribunal misinterpreted the applicant’s claim
It was contended for the applicant that the Tribunal had misunderstood the nature of the particular social group of “conscientious objectors” as it applied both generally and in the context of the applicant’s country of origin. In this respect it was submitted that the applicant’s consistent evidence to the delegate and to the Tribunal had been that he found the idea of violence to be frightening, not simply because of possible injury or death, but in and of itself and its effect on others. These claims were said to have been backed up by his witness at the Tribunal hearing.
It was submitted that in reaching the view that the applicant’s repeated references to fear excluded him from what the Tribunal understood to be the particular social group of conscientious objectors, and in finding that the applicant did not genuinely hold pacifist beliefs for reasons of morality or conscience, but was “simply afraid of doing something which he does not like”, the Tribunal adopted an extremely narrow understanding of the nature of conscientious objection that “require[d] the objector to have some more or less well-defined code of morality against which to measure military behaviour”. It was submitted that even on such a view, the applicant’s claim that he did not believe he had a right to harm others would have to be considered “a reason of conscience”. However it was contended that the Tribunal had seemed to “discount any objection to violence based on a subjective revulsion at the thought of violence itself” and that it erred in failing to consider the applicant’s claim that his fear of participating in violence was itself a conscientious belief that violence was wrong in all situations.
The applicant submitted that how the particular social group of conscientious objectors was identified in Turkish society, particularly by the Turkish military, was of more importance. It was submitted that the particular social group in question was “not identified in the Turkish context by whether or not the person had a narrowly-defined moral objection to military service”. Reliance was placed on the fact that the Tribunal had quoted independent country information to the effect that people refusing to undertake military service in Turkey “may be accused of “anti-social behaviour and lack of masculinity and Turkishness” and classified as having an “advanced anti-social personality disorder””. Thus it was submitted that the Tribunal’s finding that the authorities would somehow “see through” the applicant’s claim to be a conscientious objector was unsustainable because by expressing his objection in terms of fear the applicant would be more likely to convince the authorities that he fitted within the stereotype of the particular social group as they identified it.
In oral submissions the solicitor for the applicant contended that the Tribunal had, in essence, found that a person could not be a conscientious objector because he was afraid of combat, and that this was an error of law because the Tribunal was, in effect, applying the wrong test. It was also submitted that the evidence before the Tribunal did not include the applicant saying that he was afraid of being hurt or of being killed. Rather he was said to have claimed variously that he was afraid of the sound of guns and violence; afraid of guns, afraid of hurting someone and also afraid of violence; afraid of holding a gun and hurting someone; that not everyone has it in them to kill someone and that he could not; that he was afraid of guns, war, violence and the spilling of blood; and that he felt he did not have the right to harm another person.
This was said to amount to a claim that the applicant had “a particular revulsion or visceral fear of violence itself”, not simply a fear of being hurt, but “some psychological revulsion of the aspects of violence of guns” and killing people. It was contended that this, by any interpretation, had to be considered to be a conscientious objection to actually hurting or killing other people and that the applicant’s statement that he did not have the right to harm another person was an aspect of this claim that had been ignored by the Tribunal when it found that he was not a conscientious objector because he had a dislike or fear of military conduct. On this basis it was contended that the Tribunal had misunderstood the case being put by the applicant in determining whether or not he was a conscientious objector.
The solicitor for the applicant acknowledged that the applicant must also address the Tribunal’s conclusion that, in any event, harm arising from an imputed political belief or membership of a particular social group of conscientious objectors would not amount to persecution, as such finding would otherwise provide an independent basis for the decision.
The Tribunal was said to have apparently based its view on the approach taken in Mehenni v Minister for Immigration and Multicultural Affairs (1999) 164 ALR 192; [1999] FCA 789 at [23]. In Mehenni Lehane J was said to have taken the view that conscientious objectors would only come within the Convention definition if they were singled out and treated differently from other draft evaders.
However it was submitted that the evidence before the Tribunal of the peculiar circumstances of the situation in Turkey had to be taken into account, in particular information to the effect that a person convicted for refusing to undertake military service in Turkey was not simply convicted and sentenced once, but after the sentence was served was still obliged to enter the military and that a failure to do so resulted in a further charge, conviction and punishment.
It was submitted for the applicant that:
It is not difficult to expect that a person whose reasons for not wanting to enlist are essentially venal (financial loss, for example) would quickly surrender to the inevitable, while those more likely to continue resisting would be the ones whose objections were, indeed, conscientious.
In this respect, it was submitted that the following observations of Hill J in Applicant N 403 of 2000 v Minister for Immigration & Multicultural Affairs [2000] FCA 1088 at [23] were in point:
The draft laws as implemented in Australia during the Vietnam War permitted those with real conscientious objections to serve, not in the military forces, but rather in non-combatant roles. Without that limitation a conscientious objector could have been imprisoned. The suggested reason for their imprisonment would have been their failure to comply with the draft law, a law of universal operation. But if the reason they did not wish to comply with the draft was their conscientious objection, one may ask what the real cause of their imprisonment would be. It is not difficult, I think, to argue that in such a case the cause of the imprisonment would be the conscientious belief, which could be political opinion, not merely the failure to comply with the law of general application. It is, however, essential that an applicant have a real, not a simulated belief.
In this instance it was submitted that having regard to the possibility of “civil death” faced by a conscientious objector it “was not at all difficult to see” that the cause of such a person’s imprisonment would be “selective discrimination based on [his or her] imputed political opinion or membership of a particular social group”.
Issue was taken with the Tribunal’s consideration of the question of whether there was persecution for a Convention reason in relation to what might be seen as a law of general application. It was submitted that there was clear authority that it was possible for a person to be accepted as a refugee within the meaning of the Refugees Convention on the basis of conscientious objection to a conscription law where that law would be applied in a discriminatory manner because a person was a conscientious objector. It was contended that the evidence before the Tribunal, which it accepted, was to the effect that the application of the law in Turkey was such that the fact that a person maintained his objection in the face of punishment led to more punishment. Hence it was submitted that it could be said that the Tribunal had not considered that there was a special treatment meted out to people who were conscientious objectors. Thus it was contended that the Tribunal fell into jurisdictional error in not fully considering the applicant’s claim about why he said he was a conscientious objector and also in not recognising the discriminatory nature of the way the law was applied in Turkey, which the Tribunal was said to have accepted as being correct on a factual basis. On this basis it was contended that the Tribunal had failed to exercise its jurisdiction and that the decision should be set aside.
Counsel for the first respondent acknowledged that a failure to address a claim can constitute a jurisdictional error (see for example WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184). The first respondent submitted that no recognised jurisdictional error was clearly identified in the applicant’s written submissions and that the criticism of the Tribunal for finding that the applicant did not genuinely hold pacifist views was no more than an allegation of a wrong finding of fact which was not amenable to review by the court and did not amount to an error of law. It was also submitted that as the Tribunal had accepted that the applicant was genuinely afraid of performing military service and would be punished for not doing so, the semantic issue of whether his personal views opposing military service could be said to amount to a conscientious objection was irrelevant.
There was said to be no legal error in the Tribunal’s reasoning that the applicant would not be regarded by the Turkish authorities as a conscientious objector on an ongoing basis. It was suggested that the Tribunal’s finding that any initial risk of harm to the applicant on this basis would not be persecution for the reasons given was clearly a reference to the Tribunal’s findings about the enforcement of a law of general application.
Insofar as the applicant’s submissions appeared to claim that a conscientious objector would be persecuted for a Convention reason in Turkey based on particular country information, it was pointed out that the Tribunal also had regard to other country information and submitted that the choice and interpretation of country information was a factual matter for the Tribunal.
Moreover, the first respondent submitted that the Tribunal’s conclusion that there was no Convention motivation for the harm feared by those not complying with Turkish conscription laws, including conscientious objectors, because those laws were non-discriminatory laws of general application, was a factual conclusion open to the Tribunal for the reasons it gave and that the applicant’s disagreement with this factual conclusion did not establish any jurisdictional error on the part of the Tribunal.
As the first respondent submitted, insofar as the applicant takes issue with the Tribunal’s finding that the applicant did not genuinely hold pacifist beliefs for reasons of morality or conscience and that he was simply afraid of doing something which he does not like, such finding was a finding of fact. It has not been established that the concept of “conscientious objector” had some particular legal meaning such that the Tribunal misinterpreted it. In considering the applicant’s claim to fear persecution as a conscientious objector, it was open to the Tribunal to reject any claim that the applicant genuinely held pacifist beliefs for reasons of conscience. Even if a particular social group based on a genuinely held valid reason of conscience (as well as political, religious or moral convictions) could be identified, the Tribunal expressly rejected the claim that the applicant possessed such an attribute in finding that he did not genuinely hold pacifist beliefs for reasons of morality or “conscience”. The applicant’s disagreement with this factual finding does not establish jurisdictional error. It has not been established that the Tribunal applied the wrong test or misunderstood the case being put by the applicant.
Whether or not an applicant is a conscientious objector is ultimately a factual matter for the Tribunal. It is well-established that there is no error of law in the Tribunal making a wrong finding of fact, insofar as this appears to be the applicant’s submission (see Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303; [2010] FCAFC 51 at [20]) and it has not been established that the Tribunal’s finding in this respect gave rise to any question of law. The Tribunal’s finding in relation to the basis for the applicant’s objection to military service was open to it given, in particular, the evidence of the applicant at the Tribunal hearing. The Tribunal considered but rejected the possibility that the applicant genuinely held pacifist views for reasons of morality, conscience or political opinion. Further, it is notable that contrary to the applicant’s submissions that his claim was based on an alleged belief that violence was wrong in all situations, at the hearing he expressed his concerns in terms of fear and being afraid of violence.
In any event, as pointed out for the first respondent, while the Tribunal found that the applicant was not in fact a conscientious objector it made its decision on the basis that he would nevertheless be imputed to be a conscientious objector (and to have an imputed political opinion of conscientious objection) by the Turkish authorities. In the absence of any error in the manner in which it then proceeded to assess the applicant’s claims to have a well-founded fear of persecution by reason of a Convention ground, if there were any error of the nature contended for in the Tribunal’s finding in relation to whether the applicant was actually a conscientious objector it would not be such as to establish jurisdictional error affecting the decision.
It is apparent from the Tribunal’s reasons, read fairly and as a whole, that the Tribunal’s approach in relation to whether the applicant had a well-founded fear of persecution for a Convention reason for reason of his imputed political opinion or imputed membership of a particular social group of conscientious objectors proceeded on the basis of findings that the relevant Turkish laws were laws of general application that would be imposed in a non-discriminatory way on the applicant and hence would not constitute persecution for a Convention reason. The Tribunal found that:
…the Turkish laws relating to compulsory military service [we]re legitimately adapted to achieving the government objective of protecting the state and are not such that would offend the “standard of civil societies which seek to meet the cause of common humanity”.
Hence the Tribunal found that “these laws ought properly to be characterised as laws of general applicability”.
The Tribunal recognised that the non-discriminatory enforcement of such a law of general application would not come within the Refugees Convention, although it would be otherwise if the punishment feared was imposed for a discriminatory Convention reason. The Tribunal did not accept that the applicant’s recruitment for compulsory military service or any punishment he may face for refusing to perform it constituted persecution “as they lack the necessary discriminatory conduct on the part of the Turkish authorities who are applying a law of general application”.
Reading the Tribunal reasons fairly and as a whole, and in light of the Tribunal’s earlier discussion of this issue, it is apparent that this finding referred to the Tribunal’s earlier findings about the need for apprehended persecution to be motivated by the possession of the relevant Convention attribute (in this instance imputed political opinion or imputed membership of a particular social group), rather than being the application of a non-discriminatory law of general application. The Tribunal’s conclusion that there was no Convention motivation for the harm feared by those not complying with Turkish conscription laws (including conscientious objectors), because those laws were non-discriminatory laws of general application, was a factual conclusion. It was open to the Tribunal for the reasons that it gave. Whether persecution is for a Convention reason is a factual issue for the Tribunal (Ramirez v Minister for Immigration and Multicultural Affairs (2000) 176 ALR 514; [2000] FCA 1000, and SZDJQ & SZDJR v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 533 at [38]). Insofar as the applicant disagrees with such factual conclusion, this does not establish any jurisdictional error by the Tribunal.
Insofar as the applicant also claimed that the Tribunal failed to have regard to the possibility that the prospect of ongoing punishment of a persistent conscientious objector may constitute persecution for a Convention reason, the Tribunal had regard to the country information referred to by the applicant in support of this proposition (in particular, information about the government’s treatment of high-profile conscientious objectors which suggested that repeated refusals to comply by long-term conscientious objectors may lead to some enhanced form of punishment). However, the Tribunal drew a distinction between such a high-profile conscientious objector and a person such as the applicant who would be imputed to be a conscientious objector. It was not satisfied that any such imputation would survive in relation to the applicant given that as he was not in fact a conscientious objector or genuinely politically motivated to oppose compulsory military service he would not continue to voice a conscientious objection or opinion. It was on that basis that the Tribunal was of the view that any ongoing risk of harm to the applicant, such as that which may be experienced by genuine conscientious objectors or objectors motivated by genuine political opinion who continued to voice their objection or opinion, was remote because the applicant would not voice such objection or opinion. Again, insofar as the applicant takes issue with the Tribunal’s finding of fact in this respect, that does not establish jurisdictional error on the part of the Tribunal.
As no jurisdictional error has been established on the basis contended for by the applicant the application must be dismissed.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Barnes FM
Date: 11 September 2012
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