FEDERAL COURT OF AUSTRALIA

IMMIGRATION - Migration Act 1958 (Cth) – application for protection visa – appeal from decision of Refugee Review Tribunal – whether applicant had well-founded fear of persecution on the basis of conscientious objection

Migration Act 1958 (Cth), s 476

Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300, cited

Luu v Renevier (1989) 91 ALR 39, cited

ALEXANDRE VASSILYEVICH BOUIANOV v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 134 of 1998

BRANSON J

SYDNEY

26 OCTOBER 1998

THE COURT ORDERS THAT:

1.      The decision of the Refugee Review Tribunal be affirmed.

Note:                Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

By an application dated 25 February 1998 the applicant seeks review under s 476 of the Migration Act 1958 (Cth) (“the Act”) of a decision of the Refugee Review Tribunal (“RRT”) to affirm a decision of a delegate of the Minister not to grant to the applicant a protection visa.

The applicant is entitled to a protection visa if the relevant decision maker under the Act is satisfied that he is a person to whom Australia has 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 Refugees Convention”).  Article 1A(2) of the Refugees Convention defines a refugee as a person who:

“owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country …”

The applicant was born on 27 November 1949 in the then Soviet Union.  He is presently a citizen of the Russian Federation.  His application for review was pressed only in respect of his alleged “conscientious objection to all forms of military service requiring him to carry arms, including military service which involved training him to carry and use weapons”.

The RRT did not consider whether the applicant has a well-founded fear of persecution in Russia for a convention reason arising from conscientious objection to military service.  If such a claim was advanced before it, I consider that this failure would amount to a ground of review under s 476 of the Act (Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300).  The respondent contends that the applicant did not articulate before the RRT a conscientious objection to military training and service.  It is true that he did not expressly do so, and a decision-maker is not obliged to make a case for an applicant (Luu v Renevier (1989) 91 ALR 39).  However, in my view, in appropriate cases, a decision-maker such as the RRT may be required to give consideration to whether evidence in fact given by an applicant might support an application on a basis not articulated by an applicant.  This will more likely be found to be the case where an applicant is unrepresented, as the present applicant was before the RRT.  I turn, therefore to consider the evidence which was before the RRT.

The records of the Department of Immigration and Multicultural Affairs (“the Department”), which were before the RRT, include typed notes of an interview of the applicant held on 19 March 1996.  Such notes include the following passages:

“The applicant was never interested in bearing arms and actively defending the Russian state …  From 1968 to 1970 the applicant performed his military sevice [sic] with the Soviet army.  The applicant didn’t want to perform his military service but he only spoke about his reluctance at home.  His parents were doctors and he could have evaded military service by pretending to be sick.  If the applicant didn’t serve, however, he would have been considered unfit to be admitted to the College for International Relations, which he wanted to enter at the time.  While the applicant was a draftee he refused to serve in any regiment other than the construction regiment.  They did not emphasise martial aspects as much in the construction regiment and the applicant could study for entrance to the College.  …  The applicant thinks that warfare is wrong “but we don’t always do things as we should in life … how can it be correct to do these things in Chechenya, but [still we do it].”  The applicant would object to fighting in Chechenya on religious grounds and on the grounds that you shouldn’t wage war against your own nation.”

Certain handwritten notes on the Department’s file indicate that the applicant was directly asked during the interview of 19 March 1996, “Do you have any objection to war?” and that he was also asked whether he had any objection to undergoing military training in 1968-1970 or to studying interrogation techniques, signals interception etc.  The above passage is, in substance, a record of the applicant’s answers to these questions and to the further question, “Would [military service] be incompatible with your religious beliefs?”  The handwritten notes record that immediately following this last question, the applicant responded, “I did [military service] in [indecipherable] areas – couldn’t go to Church because not there – therefore not a problem.”

The applicant gave oral evidence to the RRT through an interpreter.  A transcript of the hearing in the English language was in evidence.  Its accuracy was not contested.  The following is a passage from the transcript:

“After I left school I had to do 2 years of the military service.  When I was still at school I decided that I would try to enter the institute [ie Moscow Institute for Economic and Foreign Trade] but because I was averse to doing my military service in the army my parents promised to help me evade it.  But I refused to take advantage of that opportunity because if I was classified as being of poor health I would have no opportunity of entering the institute.  I had to go to the army after all but I managed to get into the construction corp where they don’t have to handle weapons.  I come from a religious family and for my own moral and religious convictions I’m against handling weapons and learning how to kill people.”

The transcript records that the applicant said that the course undertaken by him at the Institute involved compulsory military drills in military camps, including shooting drills.

The transcript further records that the RRT asked the applicant why he felt that he had to leave Russia in 1995.  Following a long answer given by the applicant that did not include reference to conscientious objection to military service or training, the RRT said:

“I just want to clarify.  I understand what you have told me, and I now understand clearly what it is [sic] the mobilisation order, but when you actually were going to leave Russia, were you leaving because of the conscription order or were you leaving for any other reason?”

The applicant responded:

“I left Russia because it didn’t work out for me in the first place and then I was being victimised by the KGB, and in any case I made up my mind to leave the country and I think that that conscription order is directly connected to what happened before.”

Subsequently the RRT asked the applicant:

“What do you think will happen to you if you had to go back?”

The applicant responded:

“I can only make assumptions on the basis of the laws I quoted.  I think I’m in for a term of imprisonment…”

In response to a further question from the RRT, the applicant acknowledged that he believed that if he returned to Russia his first problem would be that he would be charged with breaking the law by leaving Russia whilst his conscription notice was outstanding, and that he would be harassed by the KGB.  Thereafter the applicant referred to the experiences of one of his Australian neighbours who had fought and been wounded while in Vietnam as a conscript in the Australian army.  The neighbour apparently now takes the view that it would have been better for him if he had refused to serve in Vietnam and served a short-term of imprisonment instead.  The applicant stated:

“And if there hadn’t been that KGB harassment stage I would rather have gone to prison because of my religious convictions rather than fighting the people.  That is the situation and from that person’s [ie his neighbours] experience I can see that people become victims of wars though it was not worth their while.  Even if Australia throws me out now … I’m grateful to this country for giving me a chance to stay away from Chechenya safe and sound having all my limbs in tact, and if I have to go back, I’ll serve a term of imprisonment and go back to my family.”

In giving consideration to the evidence of the applicant, the RRT noted that he had on more than twenty occasions obtained permission to travel from Russia to Western Europe.  The RRT concluded that the applicant must have obtained KGB approval to undertake such travel and that “his claims of KGB harassment and discrimination because of his claimed political stance in refusing to work for the KGB is not credible.”

The RRT accepted that Mr Bouianov had departed for Australia while a mobilisation order issued to him was outstanding, and that it was unusual for someone of his age to be told to prepare for mobilisation.  However, the RRT noted evidence before it which indicated that the maximum period of recall for someone of the applicant’s age was two months and that reservists would not be sent to Chechenya.  The RRT did not accept that the applicant would have to go to Chechenya if he returned to Russia.  It did not accept that a mobilisation notice was issued to the applicant because of his refusal years earlier to co-operate with the KGB.

In my view, although the applicant said that he would refuse to fight in Chechenya on religious grounds, he did not seek to maintain before the RRT that he has a fear of persecution in Russia for reasons of religion or political opinion associated with his conscientious objection to military service.  Nor did the evidence before the RRT suggest that the applicant has such a fear, or that, if he does, such fear would be well founded.  The RRT positively found that the applicant would not be required to serve in Chechenya.  The applicant did not indicate to the RRT that he fears being required to undergo military service or training should he be required to return to Russia.  Nor did he indicate that he expects to suffer any detriment in Russia by reason of his views concerning war, military service or the use of weapons.  There was nothing before the RRT which tended to suggest that a man of forty-eight years of age with the applicant’s background would be required in Russia to undergo military service or training involving the use of weapons.  The applicant himself indicated to the RRT that should he return to Russia, he expects to serve a term of imprisonment for leaving Russia whilst his conscription notice was outstanding, but that thereafter he expects to return to his family.

I conclude that the RRT did not fall into procedural or legal error by failing to consider whether the applicant is entitled to a protection visa on the basis of conscientious objection to military service.

The decision of the RRT will be affirmed.

Associate:

Dated: