Zakinov, Leonid v Gibson, John

[1996] FCA 696

C A T C H W O R D S

IMMIGRATION LAW - Refusal of refugee status - Judicial review - Jurisdiction - Applicant national of Israel - Application based on conscientious objection to military service - Expert evidence of psychologist called by applicant - Whether Tribunal should have relied on expert evidence to exclusion of its own judgment - Tribunal’s use of expert evidence not unreasonable - Tribunal did not fail to observe procedures required by the Act in failing to act according to the merits of the case - Tribunal did not err in failing to accord greater weight to expert evidence

Administrative Decisions (Judicial Review) Act 1977, s.5
Migration Act 1958, ss. 5, 420, 476, 485
Migration Reform Act 1992, s.39

Fuduche v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 515;

Mahboob v Minister for Immigration & Ethnic Affairs (1996) 135 ALR 693;

McPhee v S. Bennett Ltd (1935) 52 WN (NSW) 8;

Velmurugu & Anor v Minister for Immigration & Ethnic Affairs & Anor (unreported, Federal Court of Australia, Olney J, 23 May 1996).

ZAKINOV -v- GIBSON & Anor

No VG 764 of 1995

Before:          North J
Place:            Melbourne

Date:             26 July 1996    

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION

No VG 764 of 1995

B E T W E E N :

LEONID ZAKINOV

Applicant

AND

JOHN GIBSON

First Respondent

AND

THE MINISTER OF IMMIGRATION &
ETHNIC AFFAIRS

Second Respondent

JUDGE:  North J
PLACE:  Melbourne
DATE:    26 July 1996

REASONS FOR JUDGMENT

The applicant, Leonid Zakinov, is a Jew from the former USSR aged in his early 20s. He is a national of the State of Israel, where he lived from 1990 until his departure for Australia in May 1993. He was a student in Israel and he claims to have left Israel to avoid service in the Israeli army. He claims to have an absolute objection to military service.

Almost one year after he arrived in Australia, the applicant applied to the second respondent, the Minister of Immigration & Ethnic Affairs,
for refugee status. On 16 June 1994, his application was refused, and on 22 June 1994, he applied to the Refugee Review Tribunal for a review of that refusal. The review was heard by the Refugee Review Tribunal, constituted by the first respondent (“the Tribunal”). On 1 August 1995, the Tribunal confirmed the decision of the second respondent. The present proceedings before this Court were commenced on 13 September 1995 and challenge the decision of the Tribunal to refuse the applicant refugee status.

On 1 September 1994, s.36 of the Migration Reform Act 1992 introduced a visa known as a protection visa for people who seek protection as refugees. This visa replaced the visas and entry permits previously granted for that purpose. Section 39 of the Migration Reform Act 1992 provided that applications for refugee status not finally determined by 1 September 1994 were to be dealt with as if they were applications for a protection visa. Consequently, the Tribunal treated the applicant’s application as an application for a protection visa.

A criterion for the grant of a protection visa is that the applicant is a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees 1951 and the Protocol Relating to the Status of Refugees 1967: Migration Regulations, schedule 2, clause 866.211 and clause 866.111. Under the Convention and Protocol, ratified by Australia in 1954 and 1973 respectively, Australia has protection obligations to persons who are refugees as defined. The relevant part of the definition contained in Article 1A(2) of the Convention and Protocol requires that such person have a “well founded
fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion”.

The applicant’s claim for refugee status in part rested on his contention that he held an absolute conscientious objection to military service. In order to make out this case, the applicant had to persuade the Tribunal that his belief was based on the demands of his conscience. In the result, the Tribunal was not so persuaded and the challenge to its decision concerns the way in which the Tribunal arrived at this conclusion. In particular, it concerns the way in which the Tribunal dealt with the report and evidence of a psychologist called by the applicant to substantiate that he held a genuine conscientious objection.

Thus, I turn to examine the approach taken by the Tribunal. On this aspect, the Tribunal first defined its task as follows:

“I have given the facts of this case a great deal of thought. The applicant presented as an intelligent man who presented his arguments that he had a conscientious opposition to military service in a compelling fashion. It is necessary, however, to look at the whole of his evidence, the evidence of the expert called by him and the submissions made on his behalf to determine whether I can be satisfied that he genuinely holds an absolute objection which will entitle him to a grant of refugee status.”

As part of a careful and comprehensive examination of the elements making up a conscientious objection, the Tribunal referred to an extract from a 1985 report of the Australian Senate Standing Committee on Constitutional and Legal Affairs on the subject of Conscientious Objection to Conscripted Military Service, which included the following:

“In describing what was meant by conscientious belief, the Committee relied particularly on one witness’s analysis:

‘.... the only possible definition of a conscientious belief is a belief based on a seriously held moral conviction. That is, of course, very broad and it is perhaps best understood if we see what it leaves out. What it leaves out most clearly are beliefs based on selfish desires of one sort or another, personal interest, belief based on emotions like fear or ambition .... beliefs which are whimsical or based on impulse.’ Testimony of Prof. Peter Singer, Professor of Philosophy, Monash University .... International Journal of Refugee Law, 1990, Vol. 2, No. 3, p.390 at 405)”.

The Tribunal said it was guided by this analysis, and proceeded to make relevant findings. It found that the applicant was angry with the Israeli system because it required university students to complete military service before starting their courses. This situation was a shock to the applicant because he had believed that, in the USSR, university students were not required to undertake military service. The Tribunal also asked the applicant why he had delayed his application for more than a year if his reason for leaving Israel was his conscientious objection and such objection entitled him to refugee status in Australia immediately. The Tribunal assessed the applicant’s response as follows:

“After a break in the proceedings he disclosed that he was waiting for his sister in the expectation she would be able to sponsor him. The answer which was ultimately forthcoming has a certain ring of truth about it. I am prepared to accept that this was the case. However the fact that the applicant had to calculate whether to tell me this which I am able to infer was on the basis of whether the correct answer was for or against him, and only did so after some deliberation and one can presume consultation, lends support to the view I have ultimately formed concerning his objection to military service. The manner in which this particular item of evidence was presented confirms the impression that the presentation of his core claims was to a significant extent more a product of calculation rather than belief.”

The Tribunal then referred to an interview given by the applicant more than a year after he left Israel, in which at least one of the reasons that he gave for not wishing to do military service reflected the “quite understandable wish not to be killed himself”. The applicant gave evidence to the Tribunal that he would not participate in alternative civilian service, like hospital work, because the State did not have the right to tell him what to do. From various parts of the applicant’s evidence the Tribunal found that:

“.... he feels that he has an untrammelled freedom of choice to do what he wants to do in a ‘democratic’ society. If he did not want to do something, as he said would be the case concerning alternative civilian service, it would be wrong for the state to require him to do it. He wants to be a free agent in society. This is the language of absolutist opposition to any interference by the Israeli state, or any state for that matter, in his life in situations where he does not wish this to occur. It is not the language of moral conscience.”

THE PSYCHOLOGIST’S EVIDENCE

Mr Peter Dunn, a psychologist registered since 1974 and practising since 1968, was engaged by the applicant’s advisers for the purpose of providing an opinion on whether the applicant held a conscientious objection to military service in support of the applicant’s application for refugee status. Mr Dunn saw the applicant on three occasions in January 1995 and produced a written report which, after referring to the applicant’s family background, stated:

“Beliefs and Attitudes:

Leonid has a firm belief in a non-punitive God, creator of all. He says that in War, God is forgotten, it is against God when one kills.
Leonid believes man can help God in his plans for goodness in all by refusing to go to war. War is often caused by man’s ego.

Leonid says he believes to kill is wrong and war is collective murder. He likens war to the disease cholera - just as cholera affects man’s body, so does war affect man’s brain. Military service, he believes, is the Government’s way of controlling the people and to exert its force and authority.

Leonid has read some Pacifist writings and brought copies to the interviews - he reports that these books, particularly ‘The Pacifist Conscience’ Ed. Peter Mayer, have confirmed his beliefs about war and fighting. Leonid is careful in stating his beliefs - they cannot just be words, they must be firmly held, it has to be his truth, reason must tell him it is correct.

When discussing a hypothetical situation in which he found himself in conflict with another person, Leonid said he would refuse to physically attack or fight. He argues that he would strive to ‘make a relationship with the person’. He would try to talk with the other or get another higher authority to intercede. He believes that this is what should happen with the wars around the world, the warring parties should get together, to talk or else the United Nations should intervene.

Leonid has witnessed war. He was near Tel Aviv during the bombing by the Iraqis. He said it was frightening and terrible to see rockets falling onto innocent people. He wanted no part in such activities.

Leonid realizes that should his application for refugee status fail, he will be returned to Israel. He will be jailed for failing to attend his call up for military service. After his release, he will be barred from University and some types of employment. Leonid says that it is better to be in jail than give up your understanding of how life should be, the Israelis can punish my body; they can not punish my spirit.

The applicant, the youngest child of Russian Jewish parents living in Israel has expressed his conscientious objection to war and hence his having to enter military service.

Although only 21 years of age, Leonid appears to have thought seriously about life, death, war, and their meaning for him. His basic beliefs formed whilst young, have been strengthened by further discussions, observations and readings in recent years in Russia, Israel and Australia.

In my opinion, Leonid does appear to have thought about concepts of right and wrong, and to have made a conscious decision. I believe he is still refining his beliefs about man and his nature, and that this process is an on-going life task.

I trust that these comments may be taken into consideration when Leonid’s application is being reviewed.”

Mr Dunn also gave evidence to the Tribunal. He accepted that a psychologist would gain a more informed view if the process of interview was over a longer period than he had spent with the applicant, and that there is a better chance of establishing the views of the client in a situation in which the client is not out to demonstrate observed behaviour consistent with his stated views. Mr Dunn accepted that the applicant’s statements that he had a right to protect himself from personal harm, to choose whether to fight or not, and that service in the military was an interference with his right to go to university, could be seen to reflect more selfish motives than the motives upon which conscientious objection rests. Given these reservations, however, Mr Dunn adhered to the opinion expressed in his report.

The Tribunal dealt with the psychologist’s evidence as follows:

“There is an issue as to what weight I should give to the opinion of Mr Dunn. As he properly conceded in the course of the hearing the force of his opinion had to be qualified by the circumstances in which the sessions with the applicant took place and the time scale involved. Although the witness maintained his opinion the concessions he made are significant. The whole purpose of the exercise, without in any way suggesting anything improper on
anyone’s part, of necessity had a certain self-fulfilling nature about it. It did not take place in a context where over a significantly long period of time the psychologist had the opportunity to establish the views or beliefs of the applicant on a range of relevant issues where the expression of such views by the applicant could be said to be incidental to the purpose of the contact. The evidence of Mr Dunn would be more persuasive if the contact which he had with the applicant had not taken place in a situation open to the criticism that the process is intended to demonstrate observed behaviour consistent with the claimed beliefs. Within that process the applicant would clearly be seeking to convince the questioner of the firmly held nature of his conscientious beliefs. Mr Dunn’s report would also be more compelling if it constituted evidence through analysis of behaviour and responses over a range of situations not connected to the sole purpose of the interview.

None of this is to be taken as criticism of Mr Dunn rather that the circumstances in which his report was prepared mean that it is of less value than what might otherwise have been the case.

While I give it some weight the evidence of Mr Dunn is in my view not of such a quality so as to constitute an expert opinion on which I must rely to the exclusion of my judgment about the attitudes and beliefs of the applicant and other relevant evidence before me on this subject.”

THE CONCLUSION OF THE TRIBUNAL

The Tribunal concluded:

“I have looked very closely at all the applicant’s evidence and the material presented on his behalf. I find that there is a strong element of self-interest in the applicant’s attitudes to military service and that his approach to this whole issue is coloured by in his own words his anger with the Israeli system which meant that he worked very hard and [yet] he was not able to go to university. The inference that he held the same attitude in the past could clearly be drawn from what the applicant said at his interview with the departmental officer. From his evidence at the hearing there is a continuing thread of belief or attitude which does not in my view have its foundation in what may properly be described as a
conscientious belief. While I am prepared to accept that at one level his beliefs on the subject of war, violence and pacifism have become more sophisticated, I take the view that much of what he said on these subjects is a construct which he utilises to justify and to rationalise what he does not want to do. For the reasons I have given, I do not accept that he is a person who would be required to participate in military action contrary to his genuine moral convictions or to valid reasons of conscience. I am not persuaded on the evidence before me that either the sole or the dominant motive for his opposition to military service is one of conscience such as to bring himself within the exception to the general rule.”

GROUNDS OF REVIEW

At the hearing, the applicant relied on three grounds of review, namely, s.5(1)(e) and s.5(2)(g) of the Administrative Decisions (Judicial Review) Act 1977 (“ADJR Act”), and s.476(1)(a), and s.476(1)(e) of the Migration Act 1958. He contended that the way in which the Tribunal dealt with Mr Dunn’s evidence constituted error under each of these provisions. I shall deal with each ground in turn.

Sections 5(1)(e) & 5(2)(g), ADJR Act
Section 5(1)(e) of the ADJR Act provides for the following ground of review:

“(e)that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made”.

Section 5(2)(g) of the ADJR Act provides:

“5 (2)  The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to:

......

(g)an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power”.

A threshold question of jurisdiction arises in respect of this ground. On 1 September 1994, Part 8 of the Migration Act was introduced by the Migration Reform Act 1992. This Part gave the Court a power to review decisions, inter alia, of the Tribunal on more limited grounds than previously existed under the ADJR Act. In particular, it prevented an application being made on the ground that the decision involved an exercise of power that is so unreasonable that no reasonable person could have so exercised the power: s.476(2). The application to the Tribunal was made before the amendment came into effect, but the decision of the Tribunal and the application to this Court for a review of the decision were both made after the amendment came into effect. The application was therefore not “finally determined” within the meaning of that term as defined in s.5(9) of the Migration Act 1958. Consequently, s.39 of the Migration Reform Act 1992 applies, and it provides, in effect, that the provisions of Part 8 of the Migration Act 1958 apply to this case. Section 485, which is found in Part 8 of the Migration Act 1958, provides, so far as is relevant, that:

“In spite of any other law, including section 39B of the Judiciary Act 1903, the Federal Court does not have any jurisdiction in respect of judicially-reviewable decisions or decisions covered by subsection 475(2), other than the jurisdiction provided by this Part or by section 44 of the Judiciary Act 1903.”

Consequently, the Court does not have jurisdiction in this case under the ADJR Act.

This is also the conclusion of Olney J in the same circumstances: Velmurugu & Anor v Minister for Immigration & Ethnic Affairs & Anor
(unreported, Federal Court of Australia, Olney J, 23 May 1996). In coming to that conclusion, Olney J followed Lehane J’s decision in Mahboob v Minister for Immigration & Ethnic Affairs (1996) 135 ALR 693. Like Olney J, I agree with the reasoning in Mahboob. However, in relation to a recent proceeding in this Court, Dai v Minister for Immigration & Ethnic Affairs & Anor, No VG 388 of 1994, the Chief Justice has directed that a Full Court determine the question decided in Mahboob, namely, whether the Court has jurisdiction under the ADJR Act where the original application was made before 1 September 1994 but the decision the subject of review in the Court and the application for that review were both made after 1 September 1994. In the light of this reference to the Full Court, it is desirable that I state my view on the merits of the ground under s.5(1)(e) and s.5(2)(g) of the ADJR Act in the event that the Full Court determines that the Court has jurisdiction under that Act in such circumstances.

In my view, the Tribunal’s analysis and use of the evidence of Mr Dunn was reasonable. The Tribunal drew a distinction between an objection to military service based on conscience, and an objection based on other grounds, such as self-interest. It regarded the former as qualifying for refugee status, and the latter as not qualifying. It questioned the applicant on the issue and formed a view from that questioning and from prior statements of the applicant that his belief, while genuinely held, was based more on grounds of self-interest than conscience. The Tribunal then made an assessment of the evidence of Mr Dunn. It took into account the concessions made by Mr Dunn that his opinion was limited by the fact that the contact with the applicant had been short, and that the contact had been for the specific purpose of the
applicant demonstrating his beliefs. Further, the Tribunal took into account Mr Dunn’s concession that some of the matters on which Mr Dunn relied, such as the applicant’s desire to protect himself from harm and the applicant’s belief in his right to choose to fight or not, reflected selfish motives rather than conscientious beliefs. The Tribunal gave weight to Mr Dunn’s opinion, but took into account the limitations on Mr Dunn’s investigation, which were accepted by him, and other factors recorded in the opinion which Mr Dunn conceded demonstrated that the applicant’s beliefs were based on self-interest rather than conscience. The Tribunal concluded that Mr Dunn’s opinion should not displace the view that it had formed from assessing the applicant itself.

While the skill and techniques of a psychologist may assist a Tribunal in determining whether a person holds conscientious beliefs, such an inquiry is within the ordinary fact-finding skills of the Tribunal. Nothing in the evidence before the Tribunal demonstrated any unique skill or technique of the psychologist which should have led the Tribunal to defer to Mr Dunn without reference to its own view in the circumstances. It was a thoroughly rational course to ascertain Mr Dunn’s opinion, hold it up against the Tribunal’s independently formed view, and give weight to Mr Dunn’s opinion by reference to the limitations accepted by Mr Dunn and the concessions made by him.

The applicant relied on Fuduche v Minister for Immigration & Local Government & Ethnic Affairs (1993) 45 FCR 515, in which the Court held that no reasonable person could have rejected the opinion of a psychiatrist relating to the applicant’s psychiatric condition. In that case, the applicant sought to establish that his presence in Australia was
required by the special needs of his sister because of her psychiatric condition. The sister’s treating psychiatrist gave evidence that the sister had an emotional need for the presence of the applicant. The Tribunal rejected that evidence on the basis of the Tribunal’s lay opinion of the patient’s condition. The rejection was found by the Court to be unreasonable.

The distinctions between that case and the present are clear. The psychiatrist in Fuduche gave a medical opinion, that is to say, an opinion in a field of specialisation on a subject requiring medical skill, such that it was unreasonable for a lay Tribunal to reject the uncontradicted view of the expert. Burchett J put it thus, at 522:

“Where, upon a medical issue, medical science is unable to offer a conclusion on the probabilities, it may sometimes be open to a lay decision-maker to rely on ordinary human experience in order to bridge the scientific gap to a practical decision. But where medical science offers an answer, it is simply not rational for a lay person to brush that answer aside in favour of some theory of his own”.

Further, his Honour held that a reasonable lay person could not have avoided the conclusion, in the extreme circumstances of the case, that the patient had a special need for the applicant. The opinion was formed after many years of treating the patient, the treatment commenced before any application was made under the Migration Act 1958, and the opinion was formed for the purposes of treatment and not for the purposes of the application. These factors made it unreasonable for the Tribunal in Fuduche to reject the psychiatrist’s opinion.

In the present case, the evidence of Mr Dunn was not in a field in which lay opinions could not be validly held. The opinion was formed in
circumstances which Mr Dunn conceded reduced its value, and the opinion was sought for the express purpose of the application. In these circumstances, the unreasonableness which was found to exist in Fuduche does not exist in the present case.

Section 476(1)(a), Migration Act 1958
       This subsection provides for the following ground of review:

“(a)that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed”.

For the purpose of his argument under s.476(1)(a), the applicant contended that the relevant procedure was to be found in s.420(1) & (2) of the Migration Act 1958, as follows:

“420 (1)  The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

(2)  The Tribunal in reviewing a decision:

(a)is not bound by technicalities, legal forms or rules of evidence; and

(b)must act according to substantial justice and the merits of the case.”

The applicant contended that, by refusing to accept the opinion of Mr Dunn, the Tribunal failed to act according to the merits of the case as required by s420(2)(b), and thereby failed to adhere to the procedure required by the Act.

I agree with the view expressed by Olney J in Velmurugu, at 7, that a challenge to a decision on the merits does not involve a contravention of any procedure set out in s.420 and thus cannot give rise to a review on
the ground described in s.476(1)(a). In the present case, the applicant sought a review on the merits. He argued that the opinion of Mr Dunn had to be accepted and, in failing to accept it unconditionally, the Tribunal failed to accord it sufficient weight. This argument does not identify any failure of the Tribunal to observe a procedure required to be observed by the Act.

If I am wrong in concluding that the applicant’s complaint does not fall within s.476(1)(a), I would hold that the Tribunal did not fail to act according to the merits of the case. As I have said in relation to the ADJR Act ground, the Tribunal properly weighed the opinion of Mr Dunn against its own investigation, and properly took account of the conceded limitations of Mr Dunn’s opinion. In so doing, it acted according to the merits of the case.

Section 476(1)(e), Migration Act 1958

This subsection provides for the following ground of review:

“(e)that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision”.

In order to establish this ground, the applicant had to establish an error of law. He argued that the Tribunal was bound, as a matter of law, to accept Mr Dunn’s evidence because it was the view of an expert. The relevant law was the law relating to the role of experts. The applicant, in effect, sought to rely on Fuduche as establishing a legal principle that an expert must always be accepted by the Tribunal. This submission is clearly untenable. Fuduche established no such principle of law. It simply
determined that it was unreasonable for the Tribunal to reject the evidence of the particular expert in the circumstances of that case.

As I described in the earlier part of this judgment dealing with the ADJR Act ground of review, the applicant’s complaint is that the Tribunal refused to give greater weight to the opinion of Mr Dunn. A failure to give greater weight to some evidence rather than other evidence is not an error of law. In McPhee v S Bennett Ltd (1935) 52 WN (NSW) 8 at 9, Jordan CJ put it thus:

“The question whether there is any evidence of a particular fact is also a question of law: Sittingbourne Urban District Council v Lipton Ltd ([1931] 1 KB 539 at 544) and Mersey Docks and Harbour Board v West Derby Assessment Committee ([1932] 1 KB 40 at 110, 111). But if there is evidence of the fact, the question whether that evidence ought to be accepted in whole or in part, or ought to be accepted as sufficient to establish the fact, is itself a question of fact and not a question of law, unless, of course, there is some law which provides that the particular evidence, when given, is to be taken to establish the fact. If a tribunal which has exclusive jurisdiction to determine facts decides that it does not accept the evidence tendered as establishing a particular fact, its decision, apart from the exceptional case which I have just mentioned, is conclusive. In that case the party upon whom the burden of proving the fact lies must fail. There is no rule of law that such a tribunal must believe the evidence, because it is all one way. It can accept all, or some, or none of it.”

For the reasons given, the application will be dismissed. I will hear the parties on the question of costs.

I certify that this and the preceding sixteen (16) pages are a true copy of the reasons for judgment of his Honour Justice North.

Associate:
Dated:           26 July 1996

Counsel for the applicant:             T. Hurley
Solicitors for the applicant:           Barlow & Co

Counsel for the respondent:          W. Mosley
Solicitor for the respondent:         Australian Government Solicitor

Date of hearing:  31 May 1996
Date of judgment:  26 July 1996  

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

No VG 764 of 1995

B E T W E E N :

LEONID ZAKINOV

Applicant

AND

JOHN GIBSON

First Respondent

AND

THE MINISTER OF IMMIGRATION &
ETHNIC AFFAIRS

Second Respondent

MINUTES OF ORDER

JUDGE:  North J
PLACE:  Melbourne
DATE:    26 July 1996

THE COURT ORDERS THAT:

1. The application is dismissed.  

1. The costs of the application are reserved.  

NOTE:  Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.