FEDERAL COURT OF AUSTRALIA Minister for Immigration & Multicultural & Indigenous Affairs v VFAI of 2002 [2002] FCAFC 374 MIGRATION – refugees – claim of conscientious objection to compulsory military service – whether primary judge erred in concluding that the Refugee Review Tribunal did not deal with the case put Migration Act 1958 (Cth) Pt 8 Mehenni v Minister for Immigration and Multicultural Affairs (1999) 164 ALR 192 – cited MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS v VFAI OF 2002 V 461 OF 2002 BLACK CJ, NORTH AND MERKEL JJ 25 NOVEMBER 2002 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 461 OF 2002 On appeal from a single judge of the Federal Court of Australia BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS APPELLANT AND: VFAI OF 2002 RESPONDENT JUDGE: BLACK CJ, NORTH AND MERKEL JJ DATE OF ORDER: 25 NOVEMBER 2002 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The orders of the primary judge made on 27 June 2002 be set aside and in lieu thereof it be ordered that the respondent's application to the Court for review of the decision of the Refugee Review Tribunal be dismissed. 3. Each of the parties bear his own costs of the application for review and of the appeal. 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 V 461 OF 2002 On appeal from a single Judge of the Federal Court of Australia BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS APPELLANT AND: VFAI OF 2002 RESPONDENT JUDGE: BLACK CJ, NORTH AND MERKEL JJ DATE: 25 NOVEMBER 2002 PLACE: MELBOURNE REASONS FOR JUDGMENT THE COURT: 1 The appellant ("the Minister") has appealed against a decision of a single judge of the Court setting aside the decision of the Refugee Review Tribunal ("the RRT") affirming a decision of the delegate of the Minister not to grant a protection visa to the respondent. 2 The respondent, a citizen of Turkey, applied for a protection visa on the ground that he fears that if he returns to Turkey he will be required to undergo compulsory military service. In his original application for the protection visa the applicant stated that he did not want to do military service as he does not believe in war, he does not want to kill anyone and wants world peace. He also stated that he is afraid that he will be imprisoned if returned to Turkey. 3 In his application for review of the delegate's decision refusing him a protection visa the applicant stated that he feared that he would die if sent back to Turkey. In explaining that fear the applicant stated that he had friends who were killed or injured while undergoing their military service, that he will be sent to the west side, he does not want to die and he does not want to fight. 4 The respondent also gave evidence to the RRT explaining why he feared undergoing compulsory military service but the transcript of the hearing before the RRT was not before the primary Judge. 5 The respondent appeared in person before the primary Judge and stated that his case to the RRT had been that his objection to compulsory military service was a conscientious objection. Counsel for the Minister did not object to the matter being considered on the basis that the Tribunal may have overlooked that aspect of the respondent's case before it. 6 On the limited material before him the primary judge concluded that, as the respondent raised a case of conscientious objection before the RRT, it was necessary for it to make a finding as to whether the respondent was claiming that he intended to refuse to undergo military service by reason of a conscientious objection to such service and, if so, whether that objection arises for a Convention-related reason, such as political opinion or religious conviction. Earlier in his reasons the primary judge had referred to 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. In one of the authorities cited by his Honour, Mehenni v Minister for Immigration and Multicultural Affairs (1999) 164 ALR 192 at 197-198, Lehane J observed that conscientious objection to military service: "may reflect religious beliefs or political opinions, and there is no reason to doubt that conscientious objectors, or a class of conscientious objectors defined by reference to a particular belief or opinion, may be, for the purposes of the Convention, a "particular social group", defined as such by some characteristic, attribute, activity, belief, interest or goal that unites its members." 7 Lehane J also made the point (at 198) 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. 8 In substance, the primary Judge found that the RRT had erred in failing to deal with the conscientious objection case the respondent had put to the RRT. Consequently, his Honour found that the respondent was entitled to succeed on his application for review under Pt 8 of the Migration Act 1958 (Cth) as the RRT had misunderstood its task, asked itself the wrong question, ignored relevant material and made an error of law. 9 In his appeal to the Full Court the Minister contended that the primary Judge erred as the RRT had in fact dealt with the case the respondent had put. Without objection on the part of the respondent, who was represented by counsel appearing pro bono, the Minister produced to the Full Court and relied on the transcript of the hearing before the RRT, which had only been transcribed shortly prior to the hearing of the appeal. For present purposes it is unnecessary to set out the detail of the transcript other than to record that the Tribunal member raised directly, and on a number of occasions, with the respondent his reasons for not wanting to undergo military service in Turkey. 10 In its reasons for decision the RRT stated that in his evidence to it the respondent: "confirmed that the reason he did not want to return to Turkey was because he did not want to undergo military service. He cited the PKK situation in Turkey. Three of his friends were killed when they did their military service, some were injured and are now disabled. His friends were sent to the East of Turkey." 11 In the section of its reasons headed "Findings and Reasons" the RRT stated: "The applicant does not want to return to Turkey because he does not want to undergo compulsory military service and is afraid that he may be injured or killed, like his friends were, whilst undergoing military service." 12 When regard is had to the transcript of the hearing before the RRT to see what was actually put it is clear that the RRT had dealt with the case the respondent had put. In particular, the RRT considered the various statements made by the respondent, especially those made by him in direct answer to questions asked of him by the Tribunal member at the hearing, and concluded that the reason why the respondent did not want to undergo compulsory military service is that he: "is afraid that he may be injured or killed, like his friends were, whilst undergoing military service." 13 The RRT must be taken to have found as a fact, which was a matter for it to determine, that the respondent did not have a fear of harm for a Convention reason as a result of him not wanting to undergo compulsory military service. That finding was determinative, against the respondent, of his claim to have a well founded fear of persecution for a Convention reason if returned to Turkey. Thus, the RRT dealt with the case put, or more accurately the claims made, by the respondent and concluded that he did not have a conscientious objection to military service in the sense in which that term has been used in the cases. The RRT did not commit any reviewable error in arriving at that conclusion. 14 Accordingly, the appeal of the Minister is to be allowed and the orders of the primary judge must be set aside. The question arises as to how this Court should deal with the costs of the appeal and of the application before the primary judge. While there is some force in the Minister's submission that he was entitled to succeed on the appeal without having to rely on the transcript of the hearing before the RRT the fact is that, albeit without objection on the part of counsel for the respondent, the Minister did rely on that transcript which resolved whatever ambiguity there may have been about what was put to the RRT and whether the RRT failed to address the case put or the claims made by the respondent. Thus, the Minister's success on the appeal is, at least in part, due to the Minister's belated reliance on the transcript of the hearing before the RRT. 15 We say that the reliance is belated as trial directions required the Minister to prepare the Court Book, which the Minister's counsel accepted ought to have included "all relevant documents". While we accept that, with the benefit of hindsight, it is clear that the transcript before the RRT was plainly a relevant document it is also to be recalled that the respondent was unrepresented in the proceeding before the primary judge and had in a letter to the docket judge, a copy of which was sent to the Minister, specifically stated that his complaint about the decision of the RRT was that it did not take into account all of his claims or the circumstances he would face if made to return to Turkey. The situation was further complicated by the statement of counsel for the Minister before the primary judge that the Minister took no objection to the matter being considered on the basis that the RRT may have overlooked the conscientious objection aspect of the applicant's case before the RRT. Thus, the case the respondent had stated he wished to put before the primary judge called for consideration of the transcript but, unfortunately, the matter proceeded before his Honour without that transcript being made available. 16 The absence of the transcript before the primary judge was a contributing factor to his Honour's conclusion that the RRT had failed to deal with the case the respondent had put. Its presence before the Full Court was also a contributing factor to the ground upon which the Minister has succeeded before the Full Court. In the special circumstances of this case we regard the problems that beset this matter to be, to a significant extent, due to the failure of the transcript to be included in the Court Book or to be placed before the primary judge by the Minister. In the circumstances we have decided that it is appropriate for there to be no order for costs in respect of the hearing before the primary judge and in respect of the appeal. 17 The view we have taken on costs might have been different had the respondent been represented before the primary judge or had he not specifically raised as his criticism of the RRT's decision, the failure of the RRT to take into account all of his claims or the circumstances he would face if returned to Turkey. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Black and Justices North and Merkel. Associate: Dated: 25 November 2002 Counsel for the Appellant: Mr C Gunst QC with Mr PRD Gray Solicitor for the Appellant: Clayton Utz Counsel for the Respondent: Mr J Gibson (appearing Pro Bono) Date of Hearing: 25 November 2002 Date of Judgment: 25 November 2002