VCAD v MIMIA

Case [2004] FCA 1005

FEDERAL COURT OF AUSTRALIA

VCAD v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 1005

MIGRATION – protection visas – claim based on conscientious objection to military service – Tribunal found military service law a law of general application – religious basis for conscientious objection – whether Tribunal erred in failing to consider – alternative basis for decision of Tribunal – subsequent change in circumstances – correctness of decision not affected

Judiciary Act 1903 (Cth), s 39B
Migration Act 1958 (Cth), s 36
Migration Regulations 1994 (Cth)
Migration Legislation Amendment (Judicial Review) Act 2001 (Cth)

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, referred to
Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Applicants S134/2002 (2003) 211 CLR 441, referred to
Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293, referred to
Wang v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 548, referred to
Okere v Minister for Immigration and Multicultural Affairs (1998) 87 FCR 112, considered
Stoljkovic v Minister for Immigration and Ethnic Affairs (1993) 33 ALD 379, referred to
Murillo-Nunez v Minister for Immigration and Ethnic Affairs (1995) 63 FCR 150, referred to
Erduran v Minister for Immigration and Multicultural Affairs (2002) 122 FCR 150, followed
Mohamed v Minister for Immigration and Multicultural Affairs [2002] FCA 4, referred to
Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 203 ALR 112, cited
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, referred to
Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502, referred to
VBAC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 205, referred to
VEAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 678, referred to
Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421, referred to
Zhang v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 384,
referred to

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, referred to
Minister for Immigration & Multicultural & Indigenous Affairs v VFAI of 2002 [2002] FCAFC 374, considered
Applicant VEAZ of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1033, followed

APPLICANT VCAD OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
V 156 of 2002

KENNY J
4 AUGUST 2004
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 156 OF 2002

BETWEEN:

APPLICANT VCAD OF 2002
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

KENNY J

DATE OF ORDER:

4 AUGUST 2004

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicant pay the respondent’s costs of the application.

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

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

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AGLC
VCAD v MIMIA [2004] FCA 1005
Case
[2004] FCA 1005
Decision Date

CaseChat Overview and Summary

The case of VCAD v MIMIA involved the applicant, a citizen of the Federal Republic of Yugoslavia, along with his de facto wife and her daughter, challenging a decision by the Refugee Review Tribunal affirming the respondent's delegate's refusal to grant them protection visas. The applicant argued that he faced persecution due to his failure to comply with a call-up notice for military service and his membership in a political organisation, Srpski Pokret Obnove (SPO). The central legal issues revolved around the interpretation of the Refugees Convention and whether the applicant's refusal to perform military service constituted persecution under the Convention.

The court meticulously examined the applicant's claims, noting that while compulsory military service itself does not constitute persecution, a refusal to serve based on conscientious objection stemming from political or religious beliefs might. The court referenced the decision in Mijoljevic v MIMA, which established that refusal to perform military service does not automatically confer refugee status unless it is rooted in Convention reasons. The Tribunal had to determine whether the applicant's refusal to serve was based on such reasons.

The court held that the Tribunal erred in not considering whether the applicant had a conscientious objection to military service, which was grounded in his political or religious convictions. However, the court found that the Tribunal's decision could still stand on an alternate basis. The court concluded that the error made by the Tribunal did not fundamentally affect the outcome of the decision, as it was supportable on other grounds. Therefore, the application for judicial review was dismissed, and the applicant was ordered to pay the respondent's costs of the application.

Orders

Orders of the court

1. The application be dismissed.

2. The applicant pay the respondent’s costs of the application.

Background

Background to the litigation

This is an application under s 39B of the Judiciary Act 1903 (Cth) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 23 January 2002. The decision affirmed a decision of the respondent’s delegate not to grant protection visas to the applicant, his de facto wife and her daughter.background facts The applicant, who is a citizen of the Federal Republic of Yugoslavia, arrived in Australia on 23 October 1998. His wife and her daughter arrived in Australia on 31 March 1999. In May 1999, the applicant applied for a protection visa, including the wife and daughter in his application. On 5 August 1999, the respondent’s delegate refused this application. The applicant made an application to the Tribunal, but this was unsuccessful. This proceeding challenges the Tribunal’s decision.legislative framework Section 29(1) of the Migration Act 1958 (Cth) (“the Act”) confers power on the Minister to grant a non-citizen permission, to be known as a visa, to travel to and enter and/or remain in Australia. There are different classes of visas. Section 36(1) makes provision for protection visas. At the relevant time, s 36(2) stated:A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.Section 5 of the Act defines the expression “Refugees Convention” and “Refugees Protocol” as the Convention relating to the Status of the Refugees done at Geneva on 28 July 1951 and the Protocol relating to the Status of Refugees done at New York on 31 January 1967. Subsection 31(3) of the Act provides that the regulations may prescribe criteria for a visa or visas of a specified class. The criteria for a subclass 866 (Protection) visa are set out in Sch 2 of the Migration Regulations 1994 (Cth) (“the Regulations”). At the time of application, an applicant for a protection visa must satisfy the criterion in 866.221 which, at the relevant time, stated that:The Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention.As a party to the Refugees Convention and Refugees Protocol (collectively referred to hereafter as the “Refugees Convention”), Australia owes protection obligations to persons who are refugees. Article 1A(2) of the Refugees Convention defines a refugee as any person who:owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.the tribunal’s decision The departmental file and other documentary material were before the Tribunal. The applicant and his wife also gave oral evidence.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

KENNY J
Subsection 31(3) of the Act provides that the regulations may prescribe criteria for a visa or visas of a specified class. The criteria for a subclass 866 (Protection) visa are set out in Sch 2 of the Migration Regulations 1994 (Cth) (“the Regulations”). At the time of application, an applicant for a protection visa must satisfy the criterion in 866.221 which, at the relevant time, stated that:The Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention.As a party to the Refugees Convention and Refugees Protocol (collectively referred to hereafter as the “Refugees Convention”), Australia owes protection obligations to persons who are refugees. Article 1A(2) of the Refugees Convention defines a refugee as any person who:owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.the tribunal’s decision The departmental file and other documentary material were before the Tribunal. The applicant and his wife also gave oral evidence. The essence of the applicant’s claim was that he feared persecution as a result of his failure to comply with a call-up notice requiring him to attend for military service. He also claimed he feared persecution because of his membership of a political organisation called Srpski Pokret Obnove (“SPO”). Subject to the comments that conclude these reasons, his wife and daughter did not make specific claims under the Refugees Convention. The Tribunal recorded that:The applicant’s de facto wife stated that she had been working in Yugoslavia since 1991 and every year she would renew her business visa. She left Yugoslavia with her daughter in March 1999 and at that time she had a valid visa which was to expire in August 1999. She stated that her relationship with the applicant goes back eight years and that the only way she could return to Yugoslavia is as a tourist, this means that her daughter could not go to school. She also stated that the applicant is in constant fear and is not the same man he used to be; she believes his mental health is not good. She described the disastrous consequences on her daughter’s prospects should they need to return to Yugoslavia.There were numerous testimonials before the Tribunal concerning the musical ability of the daughter. After noting art 8 of the International Covenant on Civil and Political Rights 1996 (“ICCPR”), the Tribunal stated:It is not enough that an Applicant’s refusal to perform military service is motivated by reasons of being a pacifist, a conscientious objector or a partial conscientious objector; there may be cases where conscientious objection to military service may be the basis of a well-founded fear of persecution for a Convention reason, for example the refusal to perform military service may derive from one’s religious beliefs or may be by virtue of one’s political opinion. It is not enough to found a claim for refugee status based on punishment for refusal to perform military service, unless the sanctions that are imposed on an applicant are for Convention reasons. …The applicant did imply a Convention reason for not wanting to fight in a war. It is implied in the reading of his claims that he did not agree with the Milosevic regime and its policies. …Conscription or compulsory military service, does not of itself constitute persecution. As stated in Mijoljevic v MIMA [1999] FCA 834, the Federal Court has on a number of occasions recognised that the enforcement of laws providing for compulsory military service and punishment of those who avoid such service, will not ordinarily provide a basis for a claim of persecution within the meaning of the Convention (Branson J at 23).

Ratio Decidendi

Legal Principle Established

Established by: KENNY J

In supplementary submissions, the respondent submitted that:Prior to the advent of the privative clause regime, judges of the Federal Court would not infrequently decline relief where there was found to be an error of law, but there was an alternate and unimpeached basis upon which the decision was made.The privative clause regime and S157 should not be interpreted as disturbing this practice and the long line of authority to the effect that the error must affect the exercise or purported exercise of power. The error must be of such magnitude as to deprive the decision maker of jurisdiction. As such, relief should only be available to the applicant if, in the absence of the error, the decision could have been different: see Australian Broadcasting Tribunal v Bond [(1990) 170 CLR 321] at 384.If jurisdictional error is now found, the practical effect of S157 is that the privative clause is rendered nugatory. The review reverts to a normal s 39B application. Then, if the jurisdictional error is reflected in the ultimate decision, such that it is fundamental to the decision and/or infects the balance of the reasoning process, there is in reality no alternative or independent strand on which the decision can be sustained. The decision must, subject to the exercise of discretion, fail. However, if the decision is supportable on another basis, it follows that relief can be denied.In support of this contention, the respondent referred to Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502; VBAC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 205 at [23]; VEAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 678 at [55]; Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421; and Zhang v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 384.considerationBoth parties accepted that the decision of Gray J in Erduran set out the correct approach to a claim for refugee status based on a claim of conscientious objection to military service. For present purposes and in the absence of argument to the contrary, I accept his Honour’s analysis in that case. In Erduran at 153-4, Gray J held that the Tribunal erred in failing to consider whether the applicant had a conscientious objection to military service, which was based on his religious or political convictions. His Honour observed that, whilst there was “a line of authority establishing that the liability of a person to punishment for failing to fulfil obligations for military service does not give rise to persecution for a Convention reason”, there was “also a line of authority to the effect that a refusal to undergo military service on the ground of conscientious objection to such service may give rise to a well-founded fear of persecution for a Convention reason”. Turning to the consideration by the High Court of the case of Mr Israelian, which is reported as Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, Gray J said at 156:Nothing in those passages suggested that the High Court was intending to overrule the second line of authority to which I have referred … . The specific finding of the Tribunal in relation to Mr Israelian, that he was not opposed to all war and that his opposition to a particular war did not have an ethical, moral or political basis, made any discussion of that line of authority irrelevant. …It therefore appears that, when an issue of refusal to undergo compulsory military service arises, it is necessary to look further than the question whether the law relating to that military service is a law of general application. It is first necessary to make a finding of fact as to whether the refusal to undergo military service arises from a conscientious objection to such service. If it does, it may be the case that the conscientious objection arises from a political opinion or from a religious conviction. It may be that the conscientious objection is itself to be regarded as a form of political opinion. Even the absence of a political or religious basis for a conscientious objection to military service might not conclude the inquiry. The question would have to be asked whether conscientious objectors, or some particular class of them, could constitute a particular social group. If it be the case that a person will be punished for refusing to undergo compulsory military service by reason of conscientious objection stemming from political opinion or religious views, or that is itself political opinion, or that marks the person out as a member of a particular social group of conscientious objectors, it will not be difficult to find that the person is liable to be persecuted for a Convention reason. It is well-established that, even if a law is a law of general application, its impact on a person who possesses a Convention-related attribute can result in a real chance of persecution for a Convention reason. See Wang v Minister for Immigration & Multicultural Affairs (2000) 105 FCR 548 at 563 [65] per Merkel J. Forcing a conscientious objector to perform military service may itself amount to persecution for a Convention reason. [Emphasis added]