FEDERAL COURT OF AUSTRALIA

MIGRATION – review of decision of the Refugee Review Tribunal – whether a conscript is a member of a particular social group – draft evasion – Serbian army

Murill-Nunez v MIEA (1995) 63 FCR 150

Applicant A v MIEA (1997) 142 ALR 331

SINISA TIMIC V MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

NG 383 of 1998

THE HON JUSTICE MARCUS EINFELD AO

23 DECEMBER 1998

SYDNEY

THE COURT ORDERS THAT:

1.       The application be dismissed

2.       The applicant pay the respondent’s costs

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

REASONS FOR JUDGMENT

The applicant, a 32 year old Serb, is seeking asylum in Australia.  He arrived here on a false Italian passport on 11 December 1997, lodged a claim for refugee status on 23 January 1998, and was refused a protection visa by the Minister’s delegate on 9 February 1998.  On 8 April 1998, the Refugee Review Tribunal affirmed the refusal and he now seeks judicial review of the Tribunal’s decision.

The facts are set out in the Tribunal’s decision in some detail and there is no point in repeating them here.  It is compulsory for every Serbian male aged 18 years to do military service until 27, or 35 if he has somehow been in earlier default.  Once compulsory service is complete, he becomes a soldier in the reserve until the age of 60.  Reservists may be called up in a conflict.  The applicant has often evaded call up and has travelled out of his country on a number of occasions and returned without incident.  He has come to Australia to avoid the draft.

The applicant claims that as a conscript/reservist, he is a member of a particular social group who will be forced to take part in atrocities.  He says that he is a conscientious objector in that he is opposed to killing, wounding or maiming people, especially, as the Tribunal found, “his own people”.  The Tribunal accepted all these claims but concluded, on the basis of international law and well established judicial authority, that as compulsory military service was universal for all men in Serbia, it does not amount to discrimination against, or persecution of, him.

The applicant claims that he has a genuine and well-founded fear that he will be punished for evading the draft and that he would be drafted to serve in the recent conflicts in Kosovo.  He fears being singled out in this respect because he objects to the current regime and is, at least,  a partial conscientious objector.  Since the Tribunal’s consideration of the case, it seems that the conflict over Kosovo has somewhat abated under threat of NATO military intervention against Serbia.  However, his claims were rejected because he had no political profile in Serbia, that conscientious objection is recognised, that an amnesty had been given to draft evaders prior to 1996, and that any punishment he might receive upon his return would be imposed because he had failed to perform military service, not because he was a member of a social group of conscripts/reservists.

The application for judicial review argued first that the Tribunal failed to consider and make findings or give reasons in relation to these matters.  There is no substance to this submission.  As its decision amply shows, the Tribunal did consider this matter quite closely and made clear findings on the issue raised.  No error of law was made in this respect.

The second basis for review was that the Tribunal failed to apply the “well-founded fear” test prospectively by basing its findings on past events with no relevance to the future.  The applicant said that the amnesty only applied to draft evaders in 1992-96 and that the availability of conscientious objection expires after 15 days from receipt of the first conscription notice.  These matters were also raised as evidence of Wednesbury unreasonableness but that ground for review no longer exists in refugee cases.

This argument would have had some merit if the Tribunal had in substance relied on these errors.  It did not.  The essence of the Tribunal’s conclusion was that the applicant would not suffer persecution for his political opinions, or his conscientious objection, or his being a member of a particular social group but that any punishment he received would be for the universally applicable offence of draft evasion.  Had the Tribunal known that the Kosovo campaign of terror had been effectively brought to an end by the threat of NATO action, it might also have found that there was little likelihood of the applicant being subjected to the horror of having to kill or maim Kosovars.  There was no error of law by the Tribunal in this respect.

The applicant thirdly claimed – in several separate but virtually identical grounds – that the Tribunal erred by not injecting into its consideration of persecution the fact that he had been subjected to harassment and abuse by fellow workers at his factory and had been wrongfully dismissed.  These events which occurred between 1988 and 1991 are completely irrelevant to a claim for refugee status in 1998.  A finding that these events had occurred and had given rise to a well-founded fear of persecution at the time would not have been a basis for granting refugee status now.  Moreover, even on the applicant’s own account, they had nothing to do with his draft evasion or conscientious objection or with a political opinion related to either.  The Tribunal was not required to consider them as relevant persecution and made no error of law in not doing so.

Finally, in my view, the applicant’s several claims to be in fear of persecution as a member of a particular social group are misconceived. The authorities make clear that conscripts/ reservists under universally applicable legal arrangements are not a social group within the Convention.  In any event, the applicant’s claim to persecution is that he is a conscript/reservist who has evaded the draft.  In a case such as this, this fact does not provide a Convention ground to refugee status: Murill-Nunez v MIEA (1995) 63 FCR 150; Applicant A v MIEA (1997) 142 ALR 331.

The application fails and must be dismissed.  The applicant will pay the respondent’s costs.

Associate:

Dated:              23 December 1998