FEDERAL COURT OF AUSTRALIA NAJD v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 361 NAJD V MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS N 104 of 2003 MOORE J SYDNEY 24 APRIL 2003 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N104 OF 2003 BETWEEN: NAJD APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: MOORE J DATE OF ORDER: 24 APRIL 2003 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 104 OF 2003 BETWEEN: NAJD APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: MOORE J DATE: 24 APRIL 2003 PLACE: SYDNEY REASONS FOR JUDGMENT Background 1 This is an application for judicial review of a decision of the Refugee Review Tribunal ("The Tribunal") of 2 January 2003, affirming a decision of a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs ("the Minister") refusing to grant the applicant a Protection (Class XA) Visa under the Migration Act 1958 (Cth) ("the Act"). The criterion for the grant of such a visa is, subject to subd AL of Div 3 of the Act, that the applicant is a person to whom Australia has protection obligations, under the Convention Relating to the Status of Refugees of 28 July 1951 as amended by the Protocol Relating to the Status of Refugees of 31 January 1967 ("the Convention"). 2 The applicant is a citizen of Israel. He arrived in Australia on 30 January 1997. On 26 September 2002 the applicant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs. On 2 October 2002 a delegate of the Minister refused to grant the applicant a protection visa. The applicant applied to the Tribunal for a review of that decision on 4 October 2002. The Tribunal's reasons for decision 3 The Tribunal's reasons commenced with a discussion of the relevant legislation and what is comprehended by the definition of "refugee", by the notion of "persecution" and by the notion of "well-founded fear". In a section of its reasons entitled "Claims and Evidence", the Tribunal summarised the claims made by the applicant. The applicant gave oral evidence to the Tribunal on 17 December 2002. The Tribunal had before it the Departmental file relating to the applicant (including the reasons of decision of the delegate and the materials referred to in the delegate's reasons), the application for review and other material drawn from a range of sources. The following is a summary of the applicant's account of his circumstances drawn from the reasons for decision of the Tribunal. 4 The applicant was born in Santiago, Chile. In 1986 he moved to Israel and in 1990 acquired Israeli citizenship. The applicant is Jewish and speaks, reads, and writes in Spanish and Hebrew. At the end of 1989 he moved to the village of Tirat Karmel. He lived at the same address in Tirat Karmel until he left Israel for Australia (although in 1991 during the Gulf War the applicant lived in a Kibbutz). 5 The applicant has worked in a variety of jobs (including as a security guard). In 1990 (after an initial interview and assessment conducted in April of that year) he was called up for military service in the Israeli Defence Force (IDF). He began service in January 1991, completing his compulsory military service by early March 1991. At the time of his service he was over 24 years of age, which reduced significantly his time of compulsory continuous service. 6 From 1992 to 1996 the applicant undertook reservist duties one month per annum (in accordance with the Israeli government policy). At the hearing the applicant said his reserve duties involved general training, patrolling, guarding Jewish settlements and settlers in the occupied territories, general guard duties at military bases and occasionally providing security at political events. 7 During the time between his reservist duties he became sensitive to the conflict between the nature of military duty and his religious beliefs (such as taking aim at people without knowing whether they were civilians or terrorists). The applicant was against killing anyone and after he observed what was "going on" he was severely affected. He also had some regard for the Arabs. In 1994 the applicant had an interview with an army officer. He asked the officer whether there was any way he could avoid military service. He was told that anyone who refuses service would face military trial and imprisonment. 8 After his interview with the officer, the applicant used his health as a possible excuse to escape further military service and was examined by a doctor. During the examination the doctor mentioned that when conscripts and soldiers initially undergo their health assessments (the original assessment for the applicant was in 1990), they are given a number of points and that subsequent health problems may result in a reduction of these points and a lower profile. The applicant did not go through with the medical examination, because he did not want to lose points. His reluctance was due to the fact that potential employers had access to the army's point scores, and lower scores may have had an impact on the applicant's employability. It was also unnecessary to have the medical examination, as the doctor informed him a stomach ulcer was not considered sufficient grounds for a medical exemption to military service. At the Tribunal hearing, the applicant said that he was unsure whether he had lost any points, as he had not seen the relevant report. 9 After the 1994 interview with the officer and the medical examination, the applicant expressed his views to another solider about his objections to military service. The solider told him if he expresses his views the army will think that he is "with the other side" and he could be subjected to legal proceedings. That same year when he was working in a factory during the time when he was not performing military service, he talked regularly to one man who would frequently ask him what he was doing. Later on he saw the same man on TV who was introduced on the show as an "expert police investigator". 10 In 1995, while performing reservist duties, the applicant was involved in an incident were there was an exchange of gunfire. A support unit later relieved the applicant and his group. Two terrorists were killed in that incident. 11 When the applicant began his active military service his phone was tapped. He once picked up the phone when it was not ringing and there was someone on the other end of the line and when he asked whom it was they hung up. On one occasion after being on his reservist duties, he noticed that his phone bill was unusually high, which led him to believe that his phone was being tapped. He put a bar on his phone so that he could not make calls, but could only receive them. 12 The applicant also became the victim of a smear campaign. In 1992 a friend visited him from Italy and stayed with him. After his friend's departure he was called homosexual by passing people on the street. He would also receive anonymous calls on a regular basis and sometimes the person on the other line would make comments about his personal life (which sometimes included being called a homosexual). The applicant talked to the police (but did not put in an official complaint) and spoke to the telephone company (but did not change his phone number). 13 In a section of its reasons entitled "Findings And Reasons" the Tribunal commenced by noting that the applicant's claims were based on the grounds of religious and political opinion. The Tribunal noted that the applicant's case was essentially that he was a reservist of the Israeli Defence Forces and due to his strong religious convictions, which included forbidding the killing another human being, he did not want to serve with the IDF. He also harboured views which would be considered by the authorities and the majority of Israelis as sympathetic to Arabs. He claimed that as a consequence his phone was bugged and he was called a homosexual. 14 The Tribunal dealt with the applicant's claims under two headings: "Serving in the IDF" and "Political Opinion". In the section entitled "Serving in the IDF" the Tribunal noted that the applicant feared his refusal to continue reservist military service would mean that he would be put in jail. The Tribunal said that it is a "well-established principle" that conscription or compulsory military service, or punishment for non-service, does not constitute persecution. The Tribunal cited the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status ("the Handbook"), which states: 167. In countries where military service is compulsory, failure to preform this duty is frequently punishable by law. …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. 15 The Tribunal also found the applicant's behaviour had been inconsistent with the behaviour of a person who held genuine religious convictions against serving in the military. 16 The applicant performed his reservist duties in 1993 – 1994 without expressing any moral dilemma and made little effort to show his convictions until after his first trip to Australia in 1994. When the applicant did first show signs of a general disenchantment with his IDF reservist duties, he made no other effort to enquire beyond the information he had acquired by word of mouth from another soldier, and made no other effort to make his views known. He completed his annual reserve training in 1995 and 1996. 17 The Tribunal further noted that the applicant had initially claimed he had been discriminated against because of a lower point status under the IDF health points system, but had later said in oral evidence that he was not sure whether he had actually lost points. The Tribunal held that, in any event, the point system was based upon medical conditions and had nothing to do with the applicant's religious convictions or political views. 18 The Tribunal also held that since the applicant was 45 years old (the maximum age for service being 42), the applicant would not longer be required to serve as a reservist. The Tribunal said: The Tribunal is satisfied that the applicant's chance of being called as a reservist in a combatant's role if he returns to Israel now or in the reasonably foreseeable future is remote. It follows that the applicant's chance of being punished for refusing to serve as a reservist is also remote. Even though the Tribunal found it "highly unlikely" that the applicant would be called to serve even in view of the current situation in Israel, the Tribunal found that if the applicant were called to serve it would not be in a combatant capacity. Moreover the Tribunal noted that the applicant "did not claim to object to military service per se". 19 Finally, the Tribunal found that even if the applicant had pressed his claim that he would be persecuted for overstaying his visa and missing reservist duties, the Tribunal was satisfied (after taking into account information provided by the Israeli Consulate General) that the applicant would not face punishment for staying in Australia for 5 years. 20 In the section entitled "Political Opinion" the Tribunal commenced by stating that the applicant claimed he had espoused views which were sympathetic to the Arabs and that these views were not tolerated by the authorities and the majority of Israelis. The applicant claimed that as a result of his views his telephone was bugged. The Tribunal did not accept these claims. 21 The Tribunal also considered the applicant's claim about the "expert police investigator" to be implausible and that there was nothing to suggest that anything resulted from this "investigation". In any event, the Tribunal considered (having regard to the independent country information) that there was nothing to suggest that the government hampered free speech or harassed opponent citizens. 22 In dealing with the applicant's claim that he had been subjected to insinuations he was homosexual, the Tribunal noted that it was not entirely clear whether the applicant had been claiming the authorities were involved. The Tribunal found that it was highly implausible that the Israeli authorities would spread rumours about his sexual orientation because of his political opinion, and that his experiences did not reach the standard of persecution required under the Convention. Furthermore, the Tribunal found it was also open for the applicant to relocate somewhere else within Israel. 23 The Tribunal concluded: The Tribunal does not accept that the applicant has suffered serious harm amounting to persecution for the reason of his political opinion in Israel in the past. The Tribunal is not satisfied that the Israeli authorities ever held or hold an adverse interest in the applicant for the reason of his political opinion. The Tribunal is satisfied that if the applicant returns to Israel and continues to express his views at the same level as he has previously there is no real chance that he will face persecution now or in the reasonably foreseeable future. Issues in the application 24 The application for review in this court was filed on the 5 February 2002. The application was made under s 39B of the Judiciary Act 1903 (Cth). No clear grounds of review are identified. The application says: The day of the earing the Judge not consider or don't want listen when I want explain about my point of view of opposition, ideology and political, infront of events and incident with Palestine People, and that thing and matter bring many change in my life, activities, work, sport. This mean isolated, persecution (private life), and between all this confusion fanatic terrorist kill people of different ways. I ask to the Judge and this Federal Court who can be able guarantee the life of people (to be still alive). When I said also the prime minister was kill, he don't give bigger significant the judge don't want to listen and understand the mistake of the solicitor, Mr Jons about subject of corruption, I said that was in Chile under the Pincohet's dictatorship, some relative was working in the police force and report corruptions of others official, Mr Jons mention this situation was in Israel. This point is very important becouse make to the judge take a decision against me. Some relative, a cousin (was dead) disappear, for to be opposition at the dictatorship The Judge talk about how to put into practice the law for 1000 and one million people, if those people want to die like masochist and not stop the massacre. I am not agree with this situation and I can stand up! And travel to other place for to find pace and might to continue my life. [sic] 25 In a letter forwarded to the Court on 14 April 2003, the applicant repeated some of these complaints about the Tribunal. The applicant complained that the Tribunal did not listen to him, did not allow him to read and express his point of view and did not really understand what was occurring in the Middle East. These assertions were repeated again at the hearing. 26 In written submissions, counsel for the Minister submitted that the applicant had been unsuccessful because of the view the Tribunal took of the facts, and that it had been open to the Tribunal to find the applicant did not have a real chance of persecution in Israel, for the reasons the Tribunal gave (in particular the Tribunal's reliance on the independent country information). Furthermore, it had been open to the Tribunal to find that the applicant did not hold a genuine conscientious objection to military service. Counsel also submitted that, in any event, punishment for conscientious objection to military service obligations is not persecution within the meaning of the Convention (see Sepet v Secretary of State for the Home Department [2003] UKHL 15 and Erduran v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 814). It was then submitted that the application did not particularise any error in the Tribunal's decision and it appeared to seek merits review. 27 Counsel for the Minister further contended that there was no arguable jurisdictional error in the Tribunal's decision and it was therefore unnecessary to discuss the effect of s 474 of the Act or Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24. It was further argued that if, however, Plaintiff s157/2002 v Commonwealth of Australia were considered relevant to this case, itonly applied to jurisdictional error constituted by a breach of procedural fairness, and NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 193 ALR 449 remains binding authority: Lobo v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 144per Gyles J at [12]-[14]. The Minister's written submissions concluded with the submission that the Tribunal was plainly addressing the correct question, and the applicant's complaints were at most directed to the weight given to the evidence before the Tribunal. 28 I have read the reasons of the Tribunal. It identified three aspects of the claims of the applicant. One concerned the consequences of the applicant's desire not to serve in the army reserve because of his religious beliefs; another concerned the consequences of the applicant expressing his views about the prevailing attitude of the Israelis to the Arabs; and the last concerned the consequences to the applicant of being perceived to be homosexual. In relation to each of these matters the Tribunal concluded the applicant was not at risk of harm if he were to return to Israel. 29 As to the first matter, the Tribunal ultimately concluded it was unlikely the applicant would be called upon to serve, and as to the last two matters, it concluded, in substance, that in contemporary Israeli society, neither would expose the applicant to harm which might constitute persecution. These conclusions founded the ultimate conclusion that the applicant did not have a well founded fear of persecution. It is not apparent to me that the Tribunal's consideration of each of these matters and the applicant's case as a whole is infected by judicially reviewable legal error. It may have overstated the position concerning the connection between military service and the Convention (see Erduran v Minister for Immigration & Multicultural & Indigenous Affairs (supra) at [28] but even if this was an error, it was not material given the Tribunal's conclusion about the prospects of the applicant again being required to serve in the reserve. 30 Accordingly, the application should be dismissed with costs. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of Justice Moore. Associate: Dated: 24 April 2003 The applicant appeared in person. Counsel for the respondent: Mr T Reilly Solicitor for the respondent: Blake Dawson Waldron Date of Hearing: 15 April 2003 Date of Judgment: 24 April 2003