VCAI and VCAJ v Minister for Immigration
[2004] FMCA 443
•5 August 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VCAI & VCAJ v MINISTER FOR IMMIGRATION | [2004] FMCA 443 |
| MIGRATION – Review of decision of Refugee Review Tribunal – refusal by applicant to undergo compulsory military service – whether applicant conscientious objector – discussion of decisions in Erduran v MIMA (2002) FCA 814 and Mehenni v MIMA (1999) FCA 789 – Refugee Review Tribunal under no obligation to construct applicant's case – failure of applicant to establish well founded fear of persecution for Convention reason – application dismissed. |
Migration Act 1958
Federal Magistrates Court Rules 2001
NAAV v MIMIA [2002] FCAFC 228
R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Applicant S134/2002 [2003] HCA 1
Erduran v MIMA (2002) FCA 814
Wang v Minister for Immigration & Multicultural Affairs[2000] FCA 1599 (2000) 105 FCR 548
Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30
Magyari v MIMA (1997) 50 ALD 341
Applicant M v MIMA (2001) FCA 1412
MIMA v Applicant M (2002) FCAFC 253
Mehenni v MIMA (1999) FCA 789
Mijoljevic v MIMA (1999) FCA 834
Applicant N403 of 2000 v MIMA (2000) FCA 1088
MIMA v Shaibo [2000] FCA 600
Applicant N403 of 2000 v MIMA [2000] FCA 1088
MIMIA v VFAI of 2002 (2002) FCAFC 374
Muin v RRT; Lie v RRT (2002) 190 ALR 601
Malik v MIMA (2000) FCA 562
Parra v MIMA (2000) FCA 85
Prasad v MIEA (1985) 6 FCR 155
Landers v MIMIA (2003) FMCA 223
MIMIA v Landers (2003) FCA 1485
| Applicants: | VCAI of 2002 VCAJ of 2002 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ 429 of 2002 |
| Delivered on: | 5 August 2004 |
| Delivered at: | Melbourne |
| Hearing Date: | 28 October 2002 |
| Judgment of: | Walters FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Gibson |
| Solicitors for the Applicant: | Erskine Rodan & Associates |
| Counsel for the Respondent: | Ms Riley |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application as it related to both applicants be dismissed.
Pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001, the applicants do pay the respondent's costs of these proceedings fixed in the sum of $4,250.00.
Pursuant to rule 21.15 of the Federal Magistrates Court Rules 2001, the Court certifies that it was reasonable for the respondent to employ an advocate.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 429 of 2002
| VCAI of 2002 VCAJ of 2002 |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 8 March 2002. The decision was handed down on 18 February 2002. The RRT affirmed the decision of the delegate of the Minister not to grant protection visas for the applicants.
The first applicant is a citizen of Moldova (in the former Soviet Union). He is of Russian ethnicity and Russian orthodox faith. The second applicant is his wife.
The applicants arrived in Australia in April 1998. They arrived on visitor visas, but lodged applications for protection visas approximately 6 weeks later.
In February 1999, a delegate of the Minister refused the applications for protection visas, and in March 1999 the applicants sought a review of that decision.
I accept the following statement of background facts and information contained in paragraphs 2 and 3 of the written submissions prepared by Ms Riley on behalf of the respondent:
2.The first applicant made claims on two bases. The first claim was that he is likely to be persecuted because he refused to join the military in 1992, and the second claim was that he is likely to be persecuted because he is a Moldovian who lived in the Gaugazian region. The present application appears to relate only to the first claim.
3.The first applicant’s claims were set out in a statutory declaration made on 8 May 1998 and at the hearing before the Tribunal conducted on 7 November 2001. Essentially, the applicant’s claims regarding his refusal to join the military in 1992 were as follows:
a.he was born on 8 November 1968 in Moldova;
b.on 21 November 1986, he was drafted into the Soviet Army, where had completed a six month course as a mechanic for aircraft/helicopter electronic equipment;
c.for the following 19 months, he served in an anti-aircraft regiment as a sergeant squad commander as a specialist in aircraft helicopter equipment;
d.he was discharged from the Soviet Army in December 1988, and worked for the next three years as a tiler;
e.on 21 May 1992, the military arrived at his workplace and forced the first applicant and all of his work colleagues onto a bus and took them to a local military establishment where squads were being formed to be taken to the front line in the Dubossary region;
f.the military threatened to sack and prosecute anyone who disobeyed them;
g.the first applicant told the military representatives that he disagreed with their violent actions, that he refused to be armed, that he had too many friends and relatives on the other side and that he would not use a gun against women and children;
h.the first applicant, after his experiences in the Soviet Army, regarded himself as a pacifist and regarded any warfare as murder;
i.he escaped through an unlocked window and went home;
j.he was arrested, beaten and take to the local police station where he continued to be beaten;
k.on 13 May 1992, he was released and sent immediately to the local hospital for treatment for his injuries;
l.he then reported the beatings to the Prosecution Department; two weeks later, he was told his complaint would be postponed because there was no proof his injuries were caused by his imprisonment;
m.on 18 May 1998, he received a summons to attend before a magistrate on 19 May 1998;
n.the magistrate tired to convince him to allow himself to be enrolled in the field army;
o.the first applicant replied that he did not approve of government policy and he refused to kill people whose only fault was that they spoke Russian;
p.the magistrate said he would be prosecuted; at work, a letter was received from the local military department and he was fired; he was subsequently unable to get work and lived on money provided by his father;
q.subsequently, the magistrate said he would cancel the case if the applicant paid him $US3,000. The applicant did so, but his case was not cancelled;
r.the same thing happened about a year later, and again in September 1997, when the official told him he was likely to be imprisoned for up to 8 years;
s.the first applicant married the second applicant on 18 January 1997;
t.the first applicant refuses to take part in murderous wars against other ethnic groups within Moldova because form what he has heard they are vicious in the extreme and there is virtually no distinction between combatants and non-combatants.
The RRT’s Decision
The RRT considered separately the claims of each of the applicants.
In relation to the first applicant, and after reviewing the factual background of his claim and discussing the right of a government to conscript its citizens for military service, the RRT concluded as follows:
In the present case there is no evidence before the RRT that the applicant would suffer disproportionate punishment on account of his race, nationality, religion, membership of a particular social group or actual or imputed political opinion. Nor is there evidence to suggest that punishment under the law is applied in a discriminatory manner and for Convention reasons. The tribunal finds that whatever harm or detriment the applicant would face on return for refusing to take part in military service is not convention related.[1]
[1] See Court Book page 226
In relation to the second applicant, the RRT noted that the essence of her claim is that she was not provided adequate medical treatment because of her ethnicity, and that she was forced to leave her studies. It also noted that the second applicant claims that “people in mixed marriages like hers suffer discrimination in Moldova”.
The RRT’s conclusion in relation to the second applicant was as follows:
Even if the RRT were to accept that the deprivation of a tertiary education constituted convention persecution, it finds that what occurred to the applicant was an isolated incident within a particular, difficult context of the early 1990’s. It finds that the chance of the applicant being harmed to the degree and extent which would constitute convention persecution for reason of her ethnicity, should she return to Moldova, is remote.
As to the claims of inadequate medical treatment and the necessity to bribe medical staff in order to get attention, the applicant has not made a case which would indicate to the RRT that the treatment or lack of it was motivated by questions of ethnicity. The examination of the (internal) passport is not considered unusual by the RRT as it functions much like an identity card. Regrettably, the behaviour of medical staff in the circumstances was appalling but not out of character with the prevailing economic and social situation, not only in Moldova but in other parts of the former Soviet Union…
Given this information and discussion, the RRT finds that there is no real chance that the applicant would be persecuted for her ethnicity or for being in a “mixed” marriage should she return to Moldova and thus finds that her fear of persecution for a convention reason is not well founded.
Grounds for Review
The applicants' proceeded on an amended application for review filed on 24 July 2002. The only grounds relied upon by the applicants in the amended application are as follows:
1.The decision was made in breach of an indispensable condition or an essential pre-condition to or an inviolable limitation or restraint upon the power conferred upon the Tribunal and its jurisdiction necessary for the existence of the satisfaction required by s.65 to grant or refuse the application for a protection visa. The Tribunal exceeded its jurisdiction and/or constructively failed to exercise jurisdiction in that:
PARTICULARS
The Tribunal failed to consider the applicant’s case as put and whether his refusal to undergo military service arose from a conscientious object6ion to such service, and if so, what are the consequences of such refusal in terms of punishment, and whether such consequences are Convention-related.
2.Alternatively, the Tribunal asked itself the wrong question, identified the wrong issue and failed to take account of relevant material and its decision was made without jurisdiction or was affected by an error of jurisdiction;
PARTICULARS
the applicants refer to and repeat the particulars subjoined to paragraph 1.
The Law
Pursuant to s.483A of the Migration Act, this Court has the same jurisdiction as the Federal Court in relation to a matter rising under the Act. Under s.475A, it has jurisdiction in relation to a “privative clause decision” that is a decision made on a review by the MRT. “Privative clause decision” is defined in s.474(2) and (3) of the Act. Section 474(1) of the Act limits review by the Court of privative clause decisions as follows:
A privative clause decision:
a)is final and conclusive;
b)must not be challenged, appealed against, reviewed, quashed or called into question in any Court; and
c)is not subject to prohibition, mandamus, injunction, declaration or certiorari in any Court on any account.
In NAAV v MIMIA [2002] FCAFC 228, the Full Court of the Federal Court held that s.474 must be construed in the same manner as the kind of privative clause considered in the decision R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598. In other words, there were said to be three conditions which, if met, would ordinarily mean that a decision the subject of a provision such as s.474 would be valid. These are:
(a)the decision is a bona fide attempt by the decision-maker to exercise its power;
(b)the decision relates to the subject matter of the legislation; and
(c)the decision is reasonably capable of reference to the power conferred on the decision-maker.
There was also broad agreement in NAAV that the purported exercise of power must not be one that contravenes an inviolable limitation on the operation of the Act.
In Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2, the High Court held that as a matter of construction the expression ‘decision[s]… made under this Act’ in s.474(2) “must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act.”[2] If there has been a jurisdictional error, then the decision cannot properly be described as a decision made under this Act — and is thus not a privative clause decision as defined in s.474(2) and (3). Further, a decision flawed due to failure to comply with the principles of procedural fairness was also said not to be a privative clause decision within s.474(2).
[2] at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ, and also see [19] per Gleeson CJ and [163] per Callinan J
If there is no jurisdictional error affecting the MRT’s decision, then the decision would be a privative clause decision and protected by s.474(1) — unless it could be shown that one of the Hickman provisos had not been met.
In Plaintiff S157/2002, the High Court confined itself to a general statement of principle in relation to jurisdictional error, and the particular issue of jurisdictional error by reason of a denial of procedural fairness as asserted by the applicant in that case. The precise scope of the notion of jurisdictional error in this context, and the determination of which provisions in the Migration Act constitute inviolable limitations or restraints, may raise some complex issues[3] ¾ but there is no need to consider such issues in the proceedings before the Court.
[3] see, for example, Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Applicant S134/2002 [2003] HCA 1 — in relation to s.65 of the Migration Act
Refusal to Undergo Military Service
After referring to the first ground of the amended application, Mr Gibson (for the applicants) argued that the RRT made a "jurisdictional error" in that it failed to consider the first applicant's case as put, and whether his refusal to undergo military service arose from a conscientious objection to such service — including the consequences of such refusal in terms of the punishment, and whether such consequences are convention/related.
Mr Gibson argued as follows:
36. The basis of the threshold claim of being a conscientious objector…is put as an objection to being required to fight in a region against people amongst whom are his friends and relatives, against women and children, between ethnic groups and in a vicious war (that between the Moldovan authorities and the military forces of Trans-Dniester separatists) which makes no distinction between combatants and non- combatants…(He also) feared both a lengthy prison term for refusing to serve and further extra-curial punishment to what he had already experienced.
37.The (first) Applicant contends that the reasoning of the Tribunal manifests the error identified in that it ignores the crucial question of whether the (first) applicant held a conscientious objection. Instead the Tribunal bases its whole consideration of whether the (first) Applicant has a well-founded of persecution should he return to Moldova on the likely punishment he will suffer without any examination of the antecedent question of conscientious objection itself which impacts on the separate questions of whether the consequences of refusal to serve on that account are persecutory in nature or are Convention-related. Without treatment of the threshold question of possession of a conscientious objection and the nexus between that and the nature and type of the punishment so as to ascertain whether the cause of the likely imprisonment (if that be so) is his conscientious belief (thus making good the Convention ground of political opinion or religion or membership of a particular social group) it can not be said that the Tribunal has considered the case as presented at all.
38.The premises on which the Tribunal bases its findings on this issue is (CB 224- 225):
It is not enough that the Applicant's refusal to perform military service is motivated by reasons by being 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 are …for Convention reasons…
39.In applying these principles to the facts it is clear that the Tribunal completely misconceives the test it must apply, and what it must look at, when it first finds (at CB 226) no evidence of disproportionate punishment or discriminatory punishment for Convention reasons then from this finds that whatever harm the applicant could face is not Convention-related. This is to confuse, mix and intermingle the crucial elements in the Convention definition of persecution, Convention ground and 'well- founded fear'. More relevantly for the purposes of jurisdictional error the Tribunal reasons in this way without any consideration of the threshold question of whether the (first) applicant holds a conscientious objection, and if so, whether his refusal is due to that. This seminal issue is completely ignored. The purported absence of disproportionate punishment or discriminatory application of (implicitly) a law of general application can not and does not determine that a Convention ground is not present; it is always necessary to consider if the applicant's refusal to undergo military service arises from a conscientious objection; the tribunal must then consider (and only then) the issues of the likely consequences of the refusal and whether in causation terms the likely punishment is due to that reason. Questions of disproportion and discrimination may then (but only then) be relevant in establishing whether those consequences are simply the application of a law of general application (and thus not Convention-related) or the sanctions imposed are in truth because of his or her conscientious objection (and/or there is discrimination on the basis of the applicant's moral, philosophical, religious or political beliefs), with the result that an applicant does hold a well-founded fear of persecution…
Mr Gibson then referred to the following passages from Erduran v MIMA (2002) FCA 814:
28. 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] FCA 1599 (2000) 105 FCR 548 at [65] per Merkel J. Forcing a conscientious objector to perform military service may itself amount to persecution for a Convention reason.
29. In the present case, the Tribunal did not even embark on the first stage of this process. Having recited the applicant's claims, including his initial claim that he does not believe in war and does not want to kill anyone and wants world peace, the Tribunal did not go on to consider whether the applicant was a conscientious objector. It appears to have assumed that, even if he were, his liability to punishment for that conscientious objection would not give rise to a real chance of persecution for a Convention reason. It also appears to have assumed that only a real chance of a harsher than normal penalty, by reason of a Convention attribute, would give rise to a well-founded fear of persecution. Those assumptions reveal a failure to understand the law.
30. Counsel for the Minister referred to a sentence in the Tribunal's reasons for decision in the following terms:
"The Tribunal concluded on this basis that any harm that the applicant might suffer by reason of his pacifist views would not amount to persecution."
The context of this sentence shows clearly that it is not intended to express a finding of the Tribunal in relation to the present case. Rather, it is the Tribunal's attempt to summarise a finding made in the case of Mijoljevic, to which the Tribunal was referring in some detail. The Tribunal made no finding in the present case as to whether the applicant did or did not have "pacifist views". As I have said, it bypassed the issue.
31. In doing so, the Tribunal failed to deal with the case made by the applicant. It ignored the essence of what the applicant had said, by determining that the case was concluded on the basis that the law of Turkey relating to compulsory military service was a law of general application. This conclusion amounted to an error of law on the part of the Tribunal…
32. By failing to deal with the case the applicant had put, the Tribunal misunderstood its task. It asked itself the wrong question and ignored relevant material in a way that affected the exercise of its power. It therefore made an error of law of the kind referred to in the joint judgment of McHugh, Gummow and Hayne JJ (with whom Gleeson CJ expressed agreement) in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30 (2000) 180 ALR 1 at [82].
According to Gray J in Erduran, "the line of authority from Magyari v MIMA (1997) 50 ALD 341 to Applicant M v MIMA (2001) FCA 1412 represents the law on this subject". That line of cases included Mehenni v MIMA (1999) FCA 789, Mijoljevic v MIMA (1999) FCA 834, and Applicant N403 of 2000 v MIMA (2000) FCA 1088.
As Ms Riley pointed out, however, the decision of Carr J in Applicant M was overturned on appeal — see MIMA v Applicant M (2002) FCAFC 253.
The line of authority referred to in the above passages by Gray J. commences with Magyari v MIMA [1997] FCA 417; (1997) 50 ALD 341. In that case, O’Loughlin J was dealing with a review of a decision of the RRT. The applicant claimed that he had a well-founded fear of persecution because of his objection to being drawn into the conflict in the Balkans by being subjected to compulsory military call up. After referring to a passage from World Refugee Survey: 1986 in Review, his Honour said:
I see no reason why the passage just quoted should not be accepted as a statement of principle – that there may be cases in which conscientious objection to military service will 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 it may be by virtue of one's political opinions.
His Honour recognised, however, that there could be no successful claim to refugee status unless the claimant’s conscientious objection based upon a convention ground led to persecution of the claimant. At ALD 343, His Honour said:
Even if it be accepted that the applicant is a conscientious objector and even if it be assumed that Hungary treats such persons harshly (to the point of persecution in the legal sense) one is left wondering whether the reason for the persecution is a convention reason. (emphasis added)
Further, at ALD 344, his Honour made the position even clearer:
If he returns to Hungary the applicant will only be persecuted if: -
·Hungary is engaged militarily in the Balkan conflict
·the applicant is called up for compulsory military service
·the applicant objects to such service for a convention reason
·the appropriate authorities react to his objection in such a harsh way that the reaction will amount to persecution (emphasis added)
In Mehenni v MIMA (1999) 164 ALR 192, Lehane J made clear the link between a claimant’s conscientious objection to military service on convention grounds and the need for the tribunal to be satisfied that there was a real chance of persecution for that reason. His honour said, at [21] – [22]:
21. …the terms of Art 1A(2) of the Convention make it clear that a refugee is a person who has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. The importance of the words "for reasons of", was emphasised by the Full Court in Ram. Burchett J (with whom O'Loughlin and Nicholson JJ agreed) said at 568:
"The link between the key word `persecuted' and the phrase descriptive of the position of the refugee, `membership of a particular social group', is provided by the words `for reasons of' - the membership of the social group must provide the reason. There is thus a common thread which links the expressions `persecuted', `for reasons of', and `membership of a particular social group'. That common thread is a motivation which is implicit in the very idea of persecution, is expressed in the phrase `for reasons of', and fastens upon the victim's membership of a particular social group. He is persecuted because he belongs to that group."
Again, in Applicant A[4], McHugh J said at 257:
"When the definition of refugee is read as a whole, it is plain that it is directed to the protection of individuals who have been or who are likely to be the victims of intentional discrimination of a particular kind. The discrimination must constitute a form of persecution, and it must be discrimination that occurs because the person concerned has a particular race, religion, nationality, political opinion or membership of a particular social group."
22. That is the perspective from which the sufficiency of the Tribunal's reasons must be assessed…
[4] Applicant A v MIEA (1997) 190 CLR 225.
Similar approaches can be discerned from the judgments in Mijolevic v MIMA [1999] FCA 834 at [20] – [23], MIMA v Shaibo [2000] FCA 600 at [27]-[28] and Applicant N403 of 2000 v MIMA [2000] FCA 1088 at [16] – [21].
To the extent that the first passage from Erduran (above) relied upon by the applicant might be taken to suggest that a tribunal must make findings about the reasons underlying a conscientious objection first and thereafter consider the question of persecution for those reasons, the passage is not consistent with the remarks of the High Court in MIMA v Yusuf (2001) CLR 323. At [55] Gaudron J. said:
Nor, in my view, does the failure of the Tribunal to make a finding as to whether or not Mr Israelian was a member of a particular social group comprised of deserters and/or draft resisters reveal reviewable error…The Tribunal's conclusion that the punishment Mr Israelian would face "for avoiding his call-up notice ... would be the application of a law of common application" necessarily involves the consequence that that punishment would not be discriminatory and, hence, would not constitute persecution…In that context, the question of Mr Israelian's membership of a particular social group comprised of deserters and/or draft resisters became irrelevant.
At [94]-[97] McHugh, Gummow and Hayne JJ said:
[93] Mr Israelian contended that the Tribunal failed to make a finding about one of the two bases upon which he claimed to have a well-founded fear of persecution. He claimed that he was a refugee both because of his political opinions (being his conscientious objection to military service in connection with a particular territorial dispute between Armenia and Azerbaijan) and because of his membership of a particular social group (being deserters or draft evaders).
[94]The Tribunal found that if, on his return to Armenia, Mr Israelian was punished for not meeting his obligation to give military service it would be "the application of a law of common application, imposed by the authorities regardless of ... any political opinion". This, in the opinion of the Tribunal, did not constitute persecution. The Tribunal framed its discussion of the issues … in terms of Mr Israelian's claim to be a "conscientious objector" and concluded that his expressed views "do not disclose genuine convictions based on ethical, moral or political grounds". It did not, in its reasons, refer expressly to his alleged membership of a social group (being that of deserters or draft evaders) although it expressed its conclusion about unwanted consequences that might happen to him on his return as punishment which "would not be motivated by Convention reasons".
[95]The failure to refer to one of the alternative bases on which an applicant for a protection visa based a claim would, in many cases, reveal a failure to take account of relevant considerations or an error of law such as would enable judicial review…Cases can, however, readily be imagined where the factual findings relating to one asserted basis for protection necessarily and inevitably denied any other basis for protection.
This was said to be such a case. It was submitted on behalf of the Minister that the finding that Mr Israelian was not a conscientious objector inevitably denied both the holding of a relevant political opinion and the membership of a relevant social group. We do not accept that this is such a case. The social group identified by Mr Israelian was defined by reference to the fact of avoidance of military service, not the reasons for that avoidance. It follows that the finding of fact that was made by the Tribunal did not conclude the issues raised by Mr Israelian's alternative claim.
Nevertheless, it must be recalled that the Tribunal did not base its conclusion affirming the decision to refuse Mr Israelian a protection visa only on its finding about conscientious objection. It concluded that there would not be persecution of Mr Israelian if he returned to his country of nationality, only the possible application of a law of general application. The Tribunal is not shown to have made an error of law in that respect (footnotes omitted, my emphasis).
The UNHCR handbook on procedures and criteria for determining refugee status deals with military service as follows:
167.In countries where military service is compulsory, failure to perform this duty is frequently punishable by law. Moreover, whether military service is compulsory or not, desertion is invariably considered a criminal offence. The penalties may vary from country to country, and are not normally regarded as persecution. Fear of prosecution and punishment for desertion or draft-evasion does not in itself constitute well-founded fear of persecution under the definition. Desertion or draft-evasion does not, on the other hand, exclude a person from being a refugee, and a person may be a refugee in addition to being a deserter or draft- evader.
168.A person is clearly not a refugee if his only reason for desertion or draft-evasion is his dislike of military service or fear of combat. He may, however, be a refugee if his desertion or evasion of military service is concomitant with other relevant motives for leaving or remaining outside his country, or if he otherwise has reasons, within the meaning of the definition, to fear persecution.
169.A deserter or draft-evader may also be considered a refugee if it can be shown that he would suffer disproportionately severe punishment for the military offence on account of his race, religion, nationality, membership of a particular social group or political opinion. The same would apply if it can be shown that he has well-founded fear of persecution on these grounds above and beyond the punishment for desertion.
170.There are, however, also cases where the necessity to perform military service may be the sole ground for a claim to refugee status, i.e. when a person can show that the performance of military service would have required his participation in military action contrary to his genuine political, religious or moral convictions, or to valid reasons of conscience.
171.Not every conviction, genuine though it may be, will constitute a sufficient reason for claiming refugee status after desertion or draft-evasion. It is not enough for a person to be in disagreement with his government regarding the political justification for a particular military action. Where, however, the type of military action, with which an individual does not wish to be associated, is condemned by the international community as contrary to basic rules of human conduct, punishment for desertion or draft-evasion could, in the light of all other requirements of the definition, in itself be regarded as persecution.
172.Refusal to perform military service may also be based on religious convictions. If an applicant is able to show that his religious convictions are genuine, and that such convictions are not taken into account by the authorities of his country in requiring him to perform military service, he may be able to establish a claim to refugee status. Such a claim would, of course, be supported by any additional indications that the applicant or his family may have encountered difficulties due to their religious convictions.
173.The question as to whether objection to performing military service for reasons of conscience can give rise to a valid claim to refugee status should also be considered in the light of more recent developments in this field. An increasing number of States have introduced legislation or administrative regulations whereby persons who can invoke genuine reasons of conscience are exempted from military service, either entirely or subject to their performing alternative (i.e. civilian) service. The introduction of such legislation or administrative regulations has also been the subject of recommendations by international agencies. In the light of these developments, it would be open to Contracting States, to grant refugee status to persons who object to performing military service for genuine reasons of conscience.
174.The genuineness of a person's political, religious or moral convictions, or of his reasons of conscience for objecting to performing military service, will of course need to be established by a thorough investigation of his personality and background. The fact that he may have manifested his views prior to being called to arms, or that he may already have encountered difficulties with the authorities because of his convictions, are relevant considerations. Whether he has been drafted into compulsory service or joined the army as a volunteer may also be indicative of the genuineness of his convictions.
Ms Riley argued that the first applicant, who is of the Russian Orthodox faith, did not suggest that he had a religious basis for his refusal to be conscripted. The first applicant's claim was, in essence, that his refusal to be conscripted was based on his disagreement with his government regarding political justification for a particular military action. This was to be contrasted with the provisions of paragraph 171 of the UNHCR handbook. Further, there was no evidence that the military action described by the first applicant was condemned by the international community as contrary to basic rules of human conduct.
Ms Riley submitted that the fist applicant had failed to state in clear terms that he was a conscientious objector, and that he had failed to explain the basis of his conscientious objection (if he had one). In those circumstances, the RRT could not be held to have misunderstood the first applicant's claim or failed to deal with the case as it was presented to it. Indeed, Ms Riley argued that the first applicant had failed to put the case that he now seeks to make out.
Ms Riley also argued that the RRT was under no obligation to construct the first applicant's case for him. The RRT was entitled to reach the conclusion that it did on the material it had before it — particularly in view of the fact that the only contemporaneous record of the first applicant's views was to the effect that he "refused to take part in a senseless war".[5] In other words, the first applicant had asserted that he did not agree with his government regarding the justification for the relevant military action. Further, the first applicant did not indicate that there was any particular religious or political basis to his views, or that they were part of a belief system of a particular social group.
[5] See Court Book page 41.
Mr Gibson referred to certain pieces of evidence which, he argued, effectively negatived Ms Riley's contentions. They included the following:
a)In a Statutory Declaration made by the first applicant on 8 May 1998, he made the following comments:
i)On 11 May 1992, representatives of our regional military department arrived at our workplace, showed their authorisation and forced all of our working gang to move by bus to the local military department where armed squads formed in order to be taken to the front line…These military department representatives threatened to prosecute and sack anyone who disobeyed them. I disagreed with their violent actions and told them so. I refused to be armed and told them that I had too many relatives and friends on the other side and I would not use a gun against women and children. After my experiences in the Soviet Army, I regarded myself very much as a pacifist, and I regarded any warfare as murder.[6]
ii)(a Magistrate) tried to convince me that I must allow myself to be enrolled into the Field Army…and I replied that I did not approve of our government policy and that I refused to contemplate killing people whose only fault was that they spoke Russian.[7]
iii)I refused to take part in murderous wars against other ethnic groups within Moldova because from what I have heard, those wars are vicious in the extreme and there is virtually no distinction between combatants and non-combatants. I will not be a party to this kind of obscenit.[8]
b)At the hearing before the Tribunal on 7 November 2001, the first applicant was asked why he escaped from the representatives of the regional military department in May 1992. He responded:
Well, I heard a lot about the behaviour of those people who had arms and how they behaved in the villages there, and I thought it was a mess and I couldn't go there. I didn't want to go there because of that mess, and besides, I had a lot of friends in Prenyestrovia and I didn't share that political attitude and I didn't want to be among those people.[9]
[6] See paragraph 4 on page 28 of the Court Book.
[7] See paragraph 6 on page 29 of the Court Book.
[8] See paragraph 14 on page 31 of the Court Book.
[9] See transcript at page 10.
c)Later in the transcript, the following exchange takes place:
RRT: (referring to a record of an administrative offence — which document appears on page 41 of the Court Book) as you can see, other than the description of the offence, it says that you were interviewed. The Defence Department was told that you were avoiding active military service and that you had committed an offence provided for in Article 250 of the Criminal Code. What is the punishment for a breach of this Article?
Applicant: I think it's about 2, up to 8 years imprisonment.
RRT: So why is it that you were then set free, if according to this piece of paper it seems they had decided that you had committed this offence?
Applicant: Well, actually, the order is as such, you sign a paper saying that you will not leave the territory or the country and you will stay there until all the case goes to court.
RRT: It says that you told them that you refused to take part in a senseless war. Is this right?
Applicant: Sorry?
RRT: It says in the same paper that you told them that your explanation was that you refused to take part in a senseless war.
Applicant: Yes, that's right.
Mr Gibson was unable to draw the court's attention to any other evidence in support of the applicant's argument in this regard.
At page 224 of the Court Book, the RRT said:
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 objections 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 on punishment for refusal to perform military service, unless the sanctions that are imposed on an applicant are for Convention reasons.
Is Erduran Good Law?
At the heart of the applicant's case before this Court is the question of whether the decision of Gray J in Erduran can be considered good law. In my opinion, it cannot. Indeed, the decision was overturned on appeal in MIMIA v VFAI of 2002 (2002) FCAFC 374. It is clear from the Full Court's decision in that case that it preferred the approach of Lehane J in Mehenni v MIMA (1999) 164 ALR 192 to that adopted by Gray J in Erduran.
The Full Court in VFAI clearly approved the approach adopted by Lehane J in Mehenni to the effect that a fear of persecution arising from a conscientious objection to military service must be established to be a fear which is held by a particular applicant for a convention reason.[10]
[10] See Mehenni at page 198.
The position is well summarised by Lehane J in the paragraph referred to in paragraph 25 of these Reasons.
I have already referred to the pieces of evidence replied upon by Mr Gibson in support of his contention that the RRT had not properly dealt with the case that the first applicant had brought before it. In my opinion, it is clear that the RRT has indeed dealt with the case put to it by the first applicant. As is apparent from the passages from the RRT's reasons quoted at paragraphs 7 and 9 above, the RRT well understood the applicant's case, and the law that had to be applied.
The RRT must have been taken to have found as a fact — which was a matter for it to determine — that the applicant did not have a fear of harm for a Convention reason as a result of not wanting to undergo military service. That finding was determinative, as against the applicant, of his claim to have a well founded fear of persecution for a Convention reason if returned to his country of origin. Thus, the RRT dealt with the first applicant's case as put.
In my opinion, the RRT did not commit any reviewable error in arriving at the conclusion that it did. The fact of the matter is that the first applicant did not establish any satisfactory nexus between his fear of the consequences of refusing to undergo military service (whether or not that refusal arose from a conscientious objection to such service) and a fear of persecution for one or more of the Convention reasons. Ms Riley is correct when she asserts the RRT was under no obligation to construct the applicant's case for him[11] — although the position may be otherwise if the rules of procedural fairness demand that the RRT draw an applicant's attention to a substantial, potentially fatal flaw in his case.[12]
[11] See, for example, Abebe v Commonwealth of Australia (1999) 197 CLR 510 at pp 576 and 608, Muin v RRT; Lie v RRT (2002) 190 ALR 601 at pp 7, 98 and 208; see also Malik v MIMA (2000) FCA 562, Parra v MIMA (2000) FCA 85 and Prasad v MIEA (1985) 6 FCR 155.
[12] See Landers v MIMIA (2003) FMCA 223 and (on appeal) MIMIA v Landers (2003) FCA 1485.
It follows from the above that I do not accept that the RRT erred in any relevant sense. In particular, I do not accept that the RRT failed to consider the applicant's case as put. Nor did it ask itself the wrong question, identify the wrong issue or fail to take account of relevant material. The application must be dismissed.
The Second Applicant
Mr Gibson did not advance any argument specifically in support of the second applicant's application, and I am unable to identify any basis upon which the RRT's decision can be interfered with as it relates to her.
Conclusion
In relation to both applicants, the RRT acted in good faith, its decision is reasonable capable of reference to the power given to it, its decision relates to the subject matter of the legislation and there can be no suggestion that any relevant constitutional limits were exceeded. Further, there can be no suggestion of bias (whether actual or apprehended). Further, there is no apparent breach of procedural fairness which amounted to jurisdictional error.
All the findings of fact contained in the RRT's decision and the conclusions drawn from those facts were reasonably open to it.
For the proceeding reasons, the grounds for review must fail and the application as it relates to both applicants must be dismissed with costs (which I shall fix in the sum of $4,250.00).
I, Paul O'Halloran, certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Walters FM
Associate:
Date: 4 August 2004
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