Timic v Minister for Immigration and Multicultural Affairs - [1998] FCA 1750

SINISA TIMIC v. MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
No. NG 383 of 1998
FED No. 1750/98
Number of pages - 3
Migration

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

M. EINFELD J

Migration - review of decision of the Refugee Review Tribunal - whether a conscript is a member of a particular social group - draft evasion - Serbian army

Murill-Nunez v MIEA (1995) 63 FCR 150

Applicant A v MIEA (1997) 142 ALR 331

SYDNEY, 26 June 1998 (hearing), 23 December 1998 (decision)

#DATE 23:12:1998

Solicitor for the Applicant: M W Gerkens & Associates

Counsel for the Respondent: Mr T. Reilly

Solicitor for the Respondent: Australian Government Solicitor

THE COURT ORDERS THAT:

1. The application be dismissed

2. The applicant pay the respondent's costs

Note: Settlement and entry of orders are dealt with in Order 36 of the Federal Court Rules.

M. EINFELD J

The applicant, a 32 year old Serb, is seeking asylum in Australia. He arrived here on a false Italian passport on 11 December 1997, lodged a claim for refugee status on 23 January 1998, and was refused a protection visa by the Minister's delegate on 9 February 1998. On 8 April 1998, the Refugee Review Tribunal affirmed the refusal and he now seeks judicial review of the Tribunal's decision.

The facts are set out in the Tribunal's decision in some detail and there is no point in repeating them here. It is compulsory for every Serbian male aged 18 years to do military service until 27, or 35 if he has somehow been in earlier default. Once compulsory service is complete, he becomes a soldier in the reserve until the age of 60. Reservists may be called up in a conflict. The applicant has often evaded call up and has travelled out of his country on a number of occasions and returned without incident. He has come to Australia to avoid the draft.

The applicant claims that as a conscript/reservist, he is a member of a particular social group who will be forced to take part in atrocities. He says that he is a conscientious objector in that he is opposed to killing, wounding or maiming people, especially, as the Tribunal found, "his own people". The Tribunal accepted all these claims but concluded, on the basis of international law and well established judicial authority, that as compulsory military service was universal for all men in Serbia, it does not amount to discrimination against, or persecution of, him.

The applicant claims that he has a genuine and well-founded fear that he will be punished for evading the draft and that he would be drafted to serve in the recent conflicts in Kosovo. He fears being singled out in this respect because he objects to the current regime and is, at least, a partial conscientious objector. Since the Tribunal's consideration of the case, it seems that the conflict over Kosovo has somewhat abated under threat of NATO military intervention against…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1998] FCA 1750
Decision Date: 23 DECEMBER 1998

CaseChat Overview and Summary

In the case of Timic v Minister for Immigration and Multicultural Affairs, the applicant, a 32-year-old Serbian national, sought asylum in Australia on the basis that he would be persecuted if returned to Serbia due to his status as a conscript in the Serbian army and his objections to participating in military actions. The applicant's claims were considered by the Refugee Review Tribunal, which found in favour of the Minister for Immigration and Multicultural Affairs, affirming the decision to refuse the applicant's claim for a protection visa. The applicant then sought judicial review of the Tribunal's decision in the Federal Court of Australia.

The central legal issues in the case were whether the Tribunal erred in its interpretation of the applicant's status as a member of a particular social group, its application of the "well-founded fear" test, and its consideration of past events in assessing the applicant's current risk of persecution. The court had to determine if the Tribunal's decision was legally sound and whether any errors of law were made that warranted overturning the decision.

The Federal Court, presided over by Einfeld J, held that the Tribunal's decision was legally sound and that there were no errors of law that warranted overturning it. The court found that the Tribunal had correctly identified that the applicant's status as a conscript or reservist under a universally applicable military service law did not constitute a particular social group for the purposes of the Refugee Convention. Additionally, the court found that the Tribunal properly considered the applicant's claims and applied the correct legal tests in its decision-making process. The court also held that the Tribunal's consideration of past events did not constitute an error of law as these events were irrelevant to the applicant's current risk of persecution.

The court dismissed the applicant's application for judicial review and ordered that the applicant pay the respondent's costs. The reasoning and outcome of the case underscore the importance of the correct application of the Refugee Convention and the need for a prospective analysis of the risk of persecution, focusing on current and future risks rather than past events.

Orders