FEDERAL COURT OF AUSTRALIA MZYTT v Minister for Immigration and Citizenship [2013] FCA 76 Citation: MZYTT v Minister for Immigration and Citizenship [2013] FCA 76 Appeal from: MZYTT & Anor v Minister for Immigration & Anor [2012] FMCA 882 Parties: MZYTT and MZYTU v MINISTER FOR IMMIGRATION AND CITIZENSHIP and MARA MOUSTAFINE (IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER) File number: VID 804 of 2012 Judge: GORDON J Date of judgment: 12 February 2013 Date of hearing: 11 February 2013 Date of last submissions: 11 February 2013 Place: Melbourne Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 29 Counsel for the Appellants: M McInnis and M Fitzgerald Solicitor for the Appellants: Maddocks Counsel for the First Respondent: S Burchall Solicitor for the First Respondent: Sparke Helmore Lawyers IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 804 of 2012 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: MZYTT First Appellant MZYTU Second Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent MARA MOUSTAFINE (IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER) Second Respondent JUDGE: GORDON J DATE OF ORDER: 12 FEBRUARY 2013 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The appeal is dismissed. 2. The Appellants pay the First Respondent's costs of the appeal, such costs to be taxed in default of agreement. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 (Cth). IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 804 of 2012 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: MZYTT First Appellant MZYTU Second Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent MARA MOUSTAFINE (IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER) Second Respondent JUDGE: GORDON J DATE: 12 FEBRUARY 2013 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 This is an appeal against an Order of Federal Magistrate Hartnett of 24 September 2012 dismissing an application for judicial review of a decision on 10 November 2011 of the second respondent, Mara Moustafine, in her capacity as an independent merits reviewer (the Reviewer). The Federal Magistrate affirmed the decision of the Reviewer, a delegate of the first respondent, the Minister for Immigration and Citizenship (the First Respondent), that: 1. the appellants did not meet the criteria for the grant of a protection visa pursuant to s 36(2) of the Migration Act 1958 (Cth) (the Act); and 2. the appellants were not persons to whom Australia owed protection obligations under the 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol Relating to the Status of Refugees (the Refugee Convention). 2 The Reviewer filed a Submitting Notice pursuant to r 12.01(1) of Federal Court Rules 2011 (Cth) on 19 October 2012. PROCEDURAL HISTORY 3 The appellants are father and son and are citizens of Iran. They arrived at Christmas Island on 5 October 2010 as offshore entry persons. On 28 November 2010, the appellants lodged requests for refugee status assessments. On 1 December 2010, the appellants were interviewed by an officer of the First Respondent. On 7 March 2011, an officer of the First Respondent determined and notified the appellants that their applications for refugee status had been refused. On 17 March 2011, the appellants applied for an independent merits review of that decision. That review was conducted on 5 August 2011 by the Reviewer. On 10 November 2011, the Reviewer found that the appellants did not meet the criteria for protection visas and recommended that they not be recognised as persons to whom Australia has protection obligations. The appellants then sought judicial review of the Reviewer's decision and, on 24 September 2012, the Federal Magistrates Court dismissed the application for review. THE REVIEWER'S DECISION 4 The first appellant sought protection under the Refugee Convention on the following grounds: 1. he has an imputed political opinion of being against the current Iranian government; 2. he protested after the July 2009 presidential election and was involved in a demonstration against President Ahmadinejad; 3. he was attacked by the Basij; 4. he verbally abused a security officer for throwing a stone at his son, the second appellant, and he was put under surveillance; 5. after he left Iran, he heard stories that the authorities had issued a warrant for his arrest, had broken into his house, had assaulted his wife and daughter, had accused him of spying for foreigners, had closed his business and blocked his bank account. He also said two summonses and an arrest warrant were issued after he arrived in Australia; and 6. because he was a failed asylum seeker, he might be accused of being a spy for the Australian government. 5 The first and second appellants claimed that the second appellant was asked by the Basij to spy on his family and he refused. 6 The first appellant's wife and daughter were still in Iran at the time of the interview for the independent merits review. 7 The second appellant stated that he did not want to return to Iran due to compulsory military service because he did not believe in the government. The first appellant similarly stated that he did not want his son to do military service because he did not believe in the government and that the government may use military service to persecute his son on the basis of the father's political opinion. 8 The Reviewer was not satisfied that the appellants were people to whom Australia owed protection obligations under the Refugee Convention. In particular, the Reviewer: 1. found that the evidence of the appellants was variously inconsistent, implausible and unsupported by independent country information; 2. did not find the appellants to be credible witnesses; 3. did not accept the first appellant's account of his encounter with the security officer and that they were involved in a stone throwing incident as claimed or that the family was placed under prolonged surveillance; 4. found that the first appellant could not identify the organisation he alleged the security officer was a member of and found it implausible that the Iranian security forces would be forced to throw stones rather than use more serious weapons; 5. was not satisfied that the appellants were truthful in their accounts of their encounter with Iranian security forces; 6. did not accept that the second appellant was approached by the Basij to spy on his family; 7. did not accept that the appellants were targeted for political reasons; and 8. did not accept that the first appellant's wife and daughter were attacked, that his bank account was frozen or his business closed. 9 The Reviewer gave no weight to summonses submitted by the first appellant. There were no charges specified on the documents. The Reviewer found that, at most, the summonses were genuine but were not issued for the reasons claimed. The Reviewer noted that although country information had indicated that summonses were being issued to those tried for offences arising out of post-election events, the fact that the appellants were not engaged in political activities meant the Reviewer was not persuaded that the country information supported the appellants' claims. 10 In respect of the compulsory military service claim, the Reviewer found the second appellant did not claim to be a conscientious objector and did not find him to be such. The Reviewer found that military service was a law of general application and did not accept the second appellant's desire to avoid it was a Refugee Convention claim for protection or that it would be discriminatorily applied to him for a Refugee Convention reason. 11 The Reviewer noted that the appellants left Iran on their own passports and did not encounter any difficulties in doing so. The Reviewer also noted that the first appellant's wife had visited the Australian Embassy in Tehran to obtain a tourist visa despite the fact that Iranian security forces stationed outside foreign embassies were able to monitor people entering. The Reviewer did not accept the first appellant's explanation that he had assured her that the Australian authorities would not disclose her information to anyone. THE COURT BELOW 12 The appellants filed an application for review in the Federal Magistrates Court on 22 December 2011. The grounds of review before the Federal Magistrate were: 1. The [Reviewer] constructively failed to exercise her jurisdiction by failing to consider whether, if the [appellants] were returned to Iran, they would suffer persecution due to the second [appellant's] refusal to perform compulsory military service on the basis of his political opinions. 2. Further or alternatively, the [Reviewer] constructively failed to exercise her jurisdiction by failing to consider whether forcing the second [appellant] to perform military service would itself amount to persecution. 3. Further or alternatively, the [Reviewer] applied the wrong test in considering whether being a failed asylum seeker returning from the west would result in persecution in Iran. 13 The grounds of review were dismissed by the Federal Magistrate. In relation to the first and second grounds, the Federal Magistrate found that the Reviewer made a factual finding that the second appellant was not a conscientious objector and that his refusal to undergo military service did not constitute a conscientious objection. Further the Federal Magistrate found that the Reviewer applied the correct legal principles as set out in Erduran v Minister for Immigration and Multicultural Affairs (2002) 122 FCR 150. The Federal Magistrate held that the Reviewer dealt with the claim as to whether the conscientious objection was itself a political opinion. The Federal Magistrate found that the finding was open to the Reviewer on the evidence and that it was not for the Court to dispute that finding. The Federal Magistrate found that the claims were addressed and rejected and otherwise subsumed in a finding of greater generality. 14 In respect of the third ground, the Federal Magistrate found that the Reviewer undertook the requisite speculation on the chance of persecution. Her Honour found no jurisdictional error. Accordingly, the application was dismissed. APPLICATION TO THIS COURT 15 The Notice of Appeal was filed in this Court on 15 October 2012. The appellants only appeal against ground one in this Court. The ground of appeal in this Court is: 1. Her Honour Federal Magistrate erred at paragraph 12 of her Honour's reasons for judgment in finding that the Reviewer dealt with the claim from the [second appellant's] refusal to do military service because he was opposed to the government. 16 Paragraph 12 of the Federal Magistrate's decision states: I find the [appellants'] claims in their totality were considered by the Reviewer and rejected. The Reviewer went further to comment adversely on the [appellants'] credibility. The Reviewer specifically asked the [second appellant] about the requirement for him to do military service and as part of that dialogue the [second appellant] said:- "What if I don't want to do the military service for that country? Cause when I don't believe in a country I'm not gonna do military service for them." [The first appellant] said:- "I did not want him to do military service for that government." The Reviewer considered this evidence in the totality of the evidence before her. She made a factual finding, as stated in her reasons, that the [second appellant] was not a conscientious objector and that his refusal to undergo military service did not constitute a conscientious objection. In doing so and on a reading of her reasons as a whole, it is implicit that she also dealt with the claim as to whether the conscientious objection was itself a political opinion. The Reviewer had already rejected the claims made by the [appellants] that they had a well-founded fear of persecution because of their actual or imputed political opinion. She did so as part of her fact-finding task, which included adverse credibility findings, on the evidence before her. Such a finding was open to her and it is not for this Court to dispute. As submitted by Counsel for the first respondent, and upon a reading of the reasons as a whole, the Reviewer applied the correct legal principles as set out in the decision of Erduran v Minister for Immigration & Multicultural Affairs [2002] FCA 814 where the [appellants'] specific claims in this regard were addressed and rejected and otherwise subsumed into a finding of greater generality. (Emphasis in original.) 17 The Reviewer's consideration of the appellants' claim based upon the second appellant's refusal to do military service was at [127] of the Reviewer's decision: I accept, as given in evidence by both [appellants], that neither of them want [the second appellant] to do military service for the Iranian government when he turns 18. The [first appellant] affirmed this when I raised it at the interview that this might have been a motive for them to seek asylum in Australia, notwithstanding the [second appellant's] comment that his father could have sent him out of the country alone and not come with him. However, [the second appellant] did not claim to be a conscientious objector and I do not find him to be such. As military service in Iran is a law of general application, I do not accept that [the second appellant's] desire to avoid it as a Convention claim for protection, nor that it would be discriminatorily applied against him for a Convention reason, such as to punish him because of his father's political beliefs, which I have already rejected. (Emphasis added.) 18 The emphasised portion above was a reference to [36] of the Reviewer's decision which was in the following terms: Asked why he did not want to return to Iran, [the second appellant] said that his father had problems and he did too. If he went back, he would not be allowed to leave the country because he would have to do military service for two years and he did not want to live there. I clarified whether he would be able to leave after he had completed military service. [The second appellant] said yes but he did not want to do military service because he did not believe in the country. (Emphasis added.) 19 In fact, the italicised section of [36] of the Reviewer's decision was an extract from the second appellant's answers to the Reviewer during the course of an interview. The transcript of part of the interview recorded the relevant questions and answers as follows: [Reviewer] Is there anything you would like to tell me about why, why you left and why you might be afraid to go back? [Second Appellant] I've told about why we left but about going back I reckon my father has got problems. [Reviewer] Okay [Second Appellant] And I myself, if I go back they won't allow me to leave the country and I don't want to live there. [Reviewer] Why do you think they won't allow you to leave the country? [Second Appellant] Because of military service. [Reviewer] Ah. When you turn 18, they'll make you do military service? [Second Appellant] For two years. [Reviewer] For two years, but can you leave after that? [Second Appellant] What if I don't want to do the military service for that country? Cause when I don't believe in a country I'm not gonna do military service for them. analysis 20 The appellants must demonstrate that the judgment under appeal is a consequence of some legal, factual or discretionary error: Allesch v Maunz (2000) 203 CLR 172 at [23]; Abeyesinghe v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1558 at [4]; MZWVH v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1016 at [10]; SZJJC v Minister for Immigration and Citizenship [2008] FCA 614 at [13]-[15]. 21 On appeal, Counsel for the appellants submitted that the judgment under appeal failed to identify the jurisdictional error in the decision of the Reviewer. The jurisdictional error was said to be a failure on the part of the Reviewer to deal with a claim raised by the evidence and contentions before her which, if resolved in one way, would or could be dispositive of the review: NABE v Minister for Immigration (2004) 144 FCR 1 at [63]. Counsel for the appellants further submitted that the "claim" that was not dealt with by the Reviewer was the claim that the second appellant was a conscientious objector on the grounds of his political opinions: see [15] above. 22 The question of a refusal to perform compulsory military service on the basis of a political opinion was considered in Erduran where Gray J found at [18] that: … There is a line of authority establishing that the liability of a person to punishment for failing to fulfil obligations for military service does not give rise to persecution for a Convention reason. See Murillo-Nunez v Minister for Immigration and Ethnic Affairs (1995) 63 FCR 150 at 159; Timic v Minister for Immigration and Multicultural Affairs [1998] FCA 1750 at p 3; Minister for Immigration and Multicultural Affairs v Shaibo [2000] FCA 600 at [28] and Trpeski v Minister for Immigration and Multicultural Affairs [2000] FCA 841 at [27]-[28]. 23 In relation to the ground of conscientious objection Gray J found that: [19] The Tribunal's analysis did not go far enough. There is also a line of authority to the effect that a refusal to undergo military service on the ground of conscientious objection to such service may give rise to a well-founded fear of persecution for a Convention reason. In Magyari v Minister for Immigration and Multicultural Affairs (1997) 50 ALD 341, O'Loughlin J cited the Office of the United Nations High Commissioner for Refugees Handbook on Procedures and Criteria for Determining Refugee Status (1992) and Hathaway, The Law of Refugee Status (1991). His Honour accepted: … 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. [20] In Mehenni v Minister for Immigration and Multicultural Affairs (1999) 164 ALR 192 at 197-198 [17] Lehane J said: Conscientious objection, whether the objection of a pacifist to all military service or a 'selective' objection, 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. [21] In Mijoljevic v Minister for Immigration & Multicultural Affairs, on which the Tribunal relied, at [21], Branson J recognised that: It may be that pacifist views which do not have a religious or political base, and which are not part of the belief system of a particular social group, are irrelevant to a claim to be entitled to a protection visa. [22] Hill J discussed the matter at some length in Applicant N 403 of 2000 v Minister for Immigration and Multicultural Affairs [2000] FCA 1088 at [20]-[27]. At [23], his Honour said: The draft laws as implemented in Australia during the Vietnam War permitted those with real conscientious objections to serve, not in the military forces, but rather in non-combatant roles. Without that limitation a conscientious objector could have been imprisoned. The suggested reason for their imprisonment would have been their failure to comply with the draft law, a law of universal operation. But if the reason they did not wish to comply with the draft was their conscientious objection, one may ask what the real cause of their imprisonment would be. It is not difficult, I think, to argue that in such a case the cause of the imprisonment would be the conscientious belief, which could be political opinion, not merely the failure to comply with a law of general application. [23] In Applicant M v Minister for Immigration and Multicultural Affairs [2001] FCA 1412, Carr J held that it was necessary to consider not only whether a person refusing to undergo military service in Afghanistan under the Taliban Government might be persecuted by reason of political opinion, but also the possibility that there was a particular social group of such persons. At [31]-[34], his Honour said: Even if there exists a conscription law of general application in the country from which a claimant refugee has fled, 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 – see Lehane J in Mehenni v Minister for Immigration and Multicultural Affairs and the authorities there cited. As his Honour pointed out, it would be necessary for an applicant for a protection visa to show that he or she had a well-founded fear of persecution for reason of membership of that group. ... In the present matter, as I have mentioned, there was no evidence of a law of general application on the matter of conscription. All the evidence points to forcible conscription by the Taliban without any lawful justification. In my opinion, when the Tribunal relied on Branson J's decision in Mijoljevic v Minister for Immigration and Multicultural Affairs [1999] FCA 834, which was a case of enforcement of laws of general application providing for compulsory military service, it fell into error. In my view, the Tribunal was obliged to consider whether the applicant had a well-founded fear of persecution by reason of his membership of a particular social group comprising those persons who held a conscientious objection to military service. In failing to do so I consider the Tribunal erred in law to the extent that it fell into jurisdictional error. 24 The issue of military service was also considered by the High Court in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. The Court found at [97] that: 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. Moreover, the evidence to which counsel for Mr Israelian pointed as suggesting that the sanctions imposed on Mr Israelian would go beyond the application of the general law related to deserters, not draft evaders. It was not demonstrated that those groups formed part of a single "social group" within the meaning of the Convention definition. … 25 As the cases referred to above demonstrate, the consideration of whether a refusal to do military service gives rise to protection obligations requires a two step inquiry: 1. what is the applicant's reason for his or her refusal to do military service (ie, is the applicant a "conscientious objector" or a member of some other group holding beliefs against compulsory military service)?; and 2. what are the consequences for a failure or refusal to complete military service (ie, can the applicant demonstrate a well-founded fear of persecution by reason of his or her membership of that group)? 26 The Reviewer's consideration of those matters was contained in the following two sentences: … [the second appellant] did not claim to be a conscientious objector and I do not find him to be such. As military service in Iran is a law of general application, I do not accept that [the second appellant's] desire to avoid it as a Convention claim for protection, nor would it be discriminately applied against him for a Convention reason, such as to punish him because of his father's political beliefs, which I have already objected. 27 In relation to the first limb (see [25(1)] above), it is unfortunate that the Reviewer expressed her consideration of the second appellant's reason for his refusal to do military service as that he "did not claim to be a conscientious objector". That phrase suggests the Reviewer was influenced by the form, rather than the substance, of the second appellant's objection to military service. It is difficult to discern how the Reviewer has, as the Federal Magistrate states, "made a factual finding … that the [second appellant] was not a conscientious objector and that his refusal to undergo military service did not constitute a conscientious objection". Whether the second appellant claimed to be a "conscientious objector" or otherwise is irrelevant. The question is whether the second appellant's reason for refusing to do military service means that he is a member of a class of objectors to military service defined by reference to a particular belief or opinion, who are, for the purpose of the Refugee Convention, a particular social group. Despite the brevity of her analysis, however, I am satisfied that the Reviewer in fact considered the second appellant's stated reason, that he did not believe in the government of Iran, and concluded that was not a reason which meant that he was a member of such a group for the purpose of the Refugee Convention. 28 In relation to the second limb, the Reviewer's analysis was again, regrettably brief. The Reviewer's view of the law of Iran governing military service was that it was "of general application". There was no particular consequence reserved for people holding the belief that the second appellant held other than that he would have to complete military service. Again, I am satisfied that, by reaching the conclusion that the law was "of general application", the Reviewer did in fact consider the second appellant's claim and conclude that he had not demonstrated a well-founded fear of persecution by reason of the belief that he held. Finally, the Reviewer went on to reject the contention that the second appellant's desire to avoid military service would be "discriminatorily applied against him for a Convention reason" because of his father's political beliefs, which the Reviewer had rejected: see [17] above. CONCLUSION 29 The Reviewer did not misunderstand or misapply the principles set out in Erduran or ask the wrong question. No error is disclosed in the Federal Magistrate's judgment. The appeal is dismissed with costs. I certify that the preceding twenty nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gordon. Associate: Dated: 12 February 2013