FEDERAL COURT OF AUSTRALIA

Applicant N 403 of 2000 v Minister for Immigration & Multicultural Affairs [2000] FCA 1088

MIGRATION - refugees - application for a protection visa - applicant a citizen of Algeria - purported fear or persecution based on either draft evasion or conscientious objection to military service resulting in imputed anti government sentiment - failure of Refugee Review Tribunal to consider issue raised by applicant - constructive failure to exercise jurisdiction - issue of causation where applicant refuses compulsory military service considered

Migration Act 1958 (Cth) ss 430, 476(1)(e)

Abebe v Minister for Immigration and Multicultural Affairs (1999) 162 ALR 1 cited

Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845 cited

Chen v Minister for Immigration and Multicultural Affairs (2000) 170 ALR 553 applied

Minister for Immigration and Multicultural Affairs v Y (unreported, FCA, 15 May 1998) referred to

V v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 355 referred to

Islam v Secretary of State for the Home Department [1999] 2 AC 629 cited

APPLICANT N 403 of 2000 v

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 403 OF 2000

HILL J

23 AUGUST 2000

SYDNEY

THE COURT ORDERS THAT:

1.         The application be allowed.

2.         The matter be remitted to the Refugee Review Tribunal, differently constituted, to be heard in accordance with law.

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

REASONS FOR JUDGMENT

1                     Before the Court is an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) constituted by a member, Ms Roslyn Smidt, affirming the decision of a delegate of the respondent Minister for Immigration and Multicultural Affairs (“the Minister”) that the applicant be not granted a protection visa.  The application is brought under s 476 of the Migration Act (Cth) 1958 (“the Act”) and in consequence the Court is limited to the grounds of judicial review set out in that section:  Abebe v Minister for Immigration and Multicultural Affairs (1999) 162 ALR 1.

2                     As is so often the case, the applicant was unrepresented, although assisted by an interpreter.  He sought to explain his dissatisfaction with the Tribunal’s decision although, unsurprisingly, was of little assistance to me in exploring the underlying legal issues.

3                     Some of the factual conclusions reached are difficult to understand.  Indeed the decision is a very unsatisfactory one.  The fact that it is the direct Parliamentary intention that this Court have no jurisdiction to embark upon what is often termed merits review, and indeed to pursue the most curious course of ensuring that this Court can not interfere, even where a decision is so unreasonable that no reasonable decision-maker could reach it, where the decision is based on irrelevant considerations, is affected by ostensible bias or reached even where there is a denial of natural justice is hard to accept in what one would like to think of as a liberal democracy, let alone one which had committed itself to the international obligations to refugees reflected in the United Nations Convention and Protocol relating to the Status of Refugees (which, together, are herein referred to as “the Convention”).  That, however, is the basis upon which I must proceed.

4                     An applicant for a protection visa can only succeed where the Minister, or in the case of a merits review by the Refugee Review Tribunal, the Tribunal, is satisfied that he or she:

“ ... 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.”

5                     The applicant is a national of Algeria.  He arrived in Australia  on 28 December 1998 on a forged passport.  His claim for a protection visa was a simple one.  He had, in 1989-90, completed twenty months of compulsory military service.  During this time he had risen to the rank of sergeant.   In that time he took no part in any fighting and at no time protested that service.  It was, however, his case that after that service had ended and, in the circumstances of martial law (the result of a civil war which began to affect the area in which he lived from around the end of 1993) in which Algeria later found itself in, he had come to object to the brutality of the Algerian armed forces, which he said included killing and torturing innocent people.

6                     He claimed that persons who had completed their initial call-up and had then been transferred to a reserve list were being recalled to military service.  His turn came, he said, when he received a notice, dated 7 September 1998, apparently from the Ministry for National Defence, National Police Headquarters requiring him to attend the headquarters of the National Police Division at 10 am on 15 September 1998 to be notified that he was required to undertake military service for the second time.  He had, as early as January 1998, been concerned that he would be called up and had taken steps to prepare to leave the country.  Upon having received the notice he obtained a French passport, made his way to China, flew to the United States and ultimately arrived in Sydney claiming to be a refugee.

7                     The applicant put his case in two ways.  First, he claimed that he feared persecution as a draft evader; second he claimed that he feared persecution as a conscientious objector or, alternatively, he claimed that he feared persecution because there would be imputed to him an opinion that he was against the government because he had left Algeria to avoid the draft.  He claimed that he would be subject to imprisonment or even torture if returned to his country.

The Tribunal’s decision

8                     The Tribunal stated the global issue for decision as follows:

“The issue to be determined in this case is whether [the applicant] has a well-founded fear of persecution in Algeria for reasons of political opinion or membership of a particular social group because he has sought to avoid being recalled to serve in the Algerian army for an additional 6 months.”

The reference to six months is not, on its face, easy to understand.  There was no evidence which I can see which suggested that the call-up the applicant received was limited to six months.

9                     Logically, the first issue to be decided was whether the applicant had, as he claimed, been recalled to national service.  After a summary of the law, (I shall return to the question of the correctness of one matter in that summary later), the Tribunal proceeded to address this question.  The only direct evidence was that given by the applicant and the letter he produced advising him that he was to attend to receive the call-up notice.  He claimed that he had, in accordance with the letter, attended and received the call-up notice.  There was absolutely nothing to suggest that that letter was a forgery and indeed it appeared on its face not to be.  The Tribunal made no attempt to ascertain if it were.  Having mentioned its existence it decided that he had not been called up.  It did so on the basis of a Canadian Research study (DZA3168.FEX dated 9 April 1999) to which it referred, ignoring other indirect evidence which supported the applicant. 

10                  The second paragraph of that study said:

“It should be noted that it is very difficult to obtain information on national service in Algeria, particularly information concerning the way the National Service Code (NSC), the Military Justice Code (MJC) and other laws and decrees are applied in practice.  Because of the current situation in the country, some Algerian sources consulted by the Research Directorate tend not to be very forthcoming or, when they do provide information, refuse to be cited for reasons of security.  In such cases, information was not used in this report.”

11                  The subsequent contents of the report referred to a call-up in 1998 (the report refers to it being pursuant to a decree in July 1998 with the recall commencing on 20 September 1998) affecting only certain classes of persons who had served their original period of military service in periods which commenced with 1992, that is to say, classes to which the applicant did not belong.  It may be noted that the call-up was not for six months but for a minimum 12 months with provision for extensions.  Interestingly the document then says: “The Research Directorate has not been able to ascertain whether other recalls or extensions have been ordered since July 1998”.  There was, of course, the possibility that there had been a later decree to which the applicant had become subject.  The final matter that may be noted about the report is the last paragraph which reads:

“This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints.  This Response is not, and does not purport to be, conclusive as to the merit of any particular claim to refugee status or asylum.” (emphasis added)

12                  Anyone reading the three disclaimers, which I have quoted, might have grave doubts how accurate or, at least, how complete the information in the report was.  The doubts might be even made more considerable, both by evidence which the applicant gave that not only did the military not act always in accordance with the law but also called up reservists, particularly those with rank, without a national decree and by a document from Amnesty International which noted that:

“Amnesty International’s information confirms that a partial call-up notice did occur in September 1998 when [the applicant] claims to have received his notice.”

Amnesty International noted that the notice the applicant had produced appeared genuine.

13                  The Tribunal dealt with the matter in the section dealing with “Findings and Reasons for Decision” as follows:

“I do not believe that [the applicant] was recalled to active service in the Algerian army in September of 1998.  As noted above, advice from the Canadian Immigration Review Board Documentation Centre (DZA3168.FEX dated 9 April 1999) states that a decree announcing a recall of reservists to commence on 20 September 1998 was issued in July 1998 recalling some reservists who had done their service between 1992 and 1994.  [The applicant] served in the army in 1989/90 and thus was not covered by this decree.

[The applicant] claims that soldiers who served during 1989 and 1990 were also recalled in 1998, but that this was done in secret.  I accept that the Algerian government and military do not reveal all of their plans or activities to the public.  I acknowledge that there are inconsistencies in the advice provided by different sources on the issue of recalls to the reserve.  I do not accept that some reservists were secretly recalled to serve in the military in 1998.  Algerian law provides for the recall or reservists and other recalls or proposed recalls have been officially announced and have received publicity in the local and international media  … none of the sources consulted suggest that there have been secret recalls of reservists to active duty.  I find it particularly telling that there is no suggestion of secret recalls of reservists in the Canadian advice ...”

14                  Clearly, to conclude that the applicant was not called up, it was necessary for the Tribunal to make a finding that the letter which corroborated what he had claimed was, in some way false.  This the Tribunal did not do.  It simply ignored it.  It is, I think, rather too charitable to think that the Tribunal inferentially decided the matter adversely to the applicant, albeit that it reached the adverse conclusion.  Given that a failure to find a material fact would be a ground of review under s 476(1), having regard to s 430:  Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845, if this were a material fact, the applicant would have made out a ground of review and the matter would need to be remitted to a differently constituted Tribunal to do again.  I shall defer consideration of that matter and continue with an account of the Tribunal’s reasons.

15                  The Tribunal continued its “reasons” by saying that even if it were accepted that the applicant had been recalled and had left the country to avoid serving, this did not bring him within the class of persons to whom Australia had protection obligations.  It is, therefore, necessary, to consider whether there is any reviewable error in this part of the reasons.  If there is not, then the failure to find whether the letter was genuine could not be a material matter.

16                  The Tribunal first made the obvious point that a law of conscription is a law of general application, so that failure to comply would not entitle the applicant to be considered as a refugee.  With that proposition, I agree.  As the Tribunal put it, what the applicant would undergo would be a penalty imposed for breaching a law of general application, “not persecution inflicted by someone motivated to harm for one of the reasons contained in the Convention”.  The reference to motivation in the passage quoted reflects the statement of the law by the Tribunal in its initial discussion, namely that it was an essential element in a person being a refugee that there be a motivation or intention or desire to harm the applicant.  Such a statement sits rather uneasily with Chen v Minister for Immigration and Multicultural Affairs (2000) 170 ALR 553 where the High Court held that it was not necessary that the harm said to be persecution be motivated by enmity or malignity for there to be persecution.  If it is, it will no doubt be easy to conclude that it is persecution, but persecution can be committed for reasons which may be high minded. 

17                  On evidence to which the Tribunal referred, it concluded that it was likely that, even although the applicant had fled the country to avoid being drafted, he would merely be put into service, rather than detained, prosecuted or summarily executed.  The Tribunal continued:

“In other words, he will be made to do what Algerian law requires of him and other young men of his age.  I do not consider this to be persecution for a Convention reason.”

The Tribunal concluded further that there was only a remote chance that the applicant would be required to participate in attacks on individuals or other human rights abuses if he were returned to active duty.

18                  It must be said that there was a considerable body of evidence, which was ignored, that, in reality, a person who went overseas to evade the draft was likely to be subject to imprisonment of at least up to five years in peacetime (longer in wartime).  The possibility of torture was not ruled out in the material before the Tribunal.

19                  The reasons as expressed by the Tribunal proceed on the basis that there could only be persecution for a Convention reason in a situation like the present either if it came about by virtue of a reaction to an imputed opinion, a matter which it explored later, or where the requirement to be called up arose because of a Convention reason.  The Tribunal put it thus:

“While I agree that it would be unjust and unreasonable to return someone to a country where they must participate in acts which is generally agreed are [sic] abuses of human rights, unless it can be said that they being forced to participate in these acts because of their race, religion, nationality, membership of a particular social group or political opinion, it cannot be said that they are entitled to protection under the Convention.”

20                  A question which now arises is whether this part of the Tribunal’s reasons constitutes an error of law, justifying the setting aside of the decision of the Tribunal, or constitutes a constructive refusal to exercise jurisdiction because the Tribunal has simply not, at this stage, dealt with the claim that the applicant would suffer persecution because he was a conscientious objector.

21                  While it is the case that punishment under a law of universal application would not constitute persecution for a Convention reason, it does not follow, in the case of a conscientious objector who has been called up but evaded the draft, it would not be open to the Tribunal to find a fear of persecution for reason of political opinion to be well-founded.  The international views on conscientious objection to military service are discussed by Goodwin-Gill in “The Refugee in International Law”, 2d ed at 50-59.  That discussion points out that the question raises the difficult issue of  causation, among other problems.  The attitude to war of a conscientious objector is, in my view, capable of being described as political opinion.  The Court has not embarked upon an attempt to define, in a comprehensive way, precisely what political opinion may be.  In Minister for Immigration and Multicultural Affairs v Y (unreported, FCA 15 May 1998), Davies J said that in the context of the Convention, an opinion could be a political opinion:

“… if it were such as to indicate that its holder, the claimant for refugee status, held views which were contrary to the interests of the State, including the authorities of the State.  A person may be regarded as an enemy of the State by virtue of  holding and propounding views which are contrary to the views of the state or its Government, or which are antithetic to the Government and the instruments which enforce the power of the State, such as the Armed Forces, Security Forces, and Police Forces or which express opposition to matters such as the structure of the State or the territory occupied by it and like matters.”

His Honour’s views were approved by a full Court of this Court in V v Minister for Immigration and Ethnic Affairs (1999) 92 FCR 355, subject, perhaps, to the implicit suggestion in them that the view had to be one that had actually been publicly expressed.  Wilcox J said at para 16:

“As I understand Davies J, as a matter of law it is enough that a person holds (or is believed to hold) views antithetic to instruments of government and is persecuted for that reasons.  It is not necessary that the person be a member of a political party or other public organisation or that the person’s opposition to the instruments of government be a matter of public knowledge.  Of course, the higher the person’s political profile, the easier it may be to persuade a tribunal of fact that the person has been persecuted on account of political opinion, rather than for some other reason; but that is a matter going to proof of the facts, not a matter of law.”

22                  In the same case I said at para 33:

“It is not necessary in this case to attempt a comprehensive definition of what constitutes ‘political opinion’ within the meaning of the Convention.  It clearly is not limited to party politics in the sense that expression is understood in a parliamentary democracy.  It is probably narrower that the usage of the word in connection with the science of politics, where it may extend to almost every aspect of society.  It suffices here to say that the holding of an opinion inconsistent with that held by the government of a country explicitly by reference to views contained in a political platform or implicitly by acts …  With respect, I agree with the view expressed by Davies J in Minister for Immigration and Ethnic Affairs v Y … that views antithetical to instrumentalities of government such as the Armed Forces, security institutions and the police can constitute political opinions for the purposes of the Convention.  Whether they do so will depend upon the facts of the particular case.”

23                  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.  It is, however, essential that an applicant have a real, not a simulated belief. 

24                  Matters of causation as they arise in immigration matters require a common sense resolution: cf Islam v Secretary of State for the Home Department [1999] 2 AC 629.  Such a common sense resolution is not satisfied by seeking to distinguish between a primary and a secondary cause where both are linked.  In my view in such a case it is not necessary to consider whether conscientious objectors also might form a social group so that any persecution they might suffer might be by reason of their membership of that group.

25                  This possibility was not considered by the Tribunal member, notwithstanding that this was, so far as can be gleaned from the submission made to the Tribunal on the applicant’s behalf by Legal Aid, an aspect of the applicant’s case.  There was, I would find, a constructive failure on the part of the Tribunal to exercise its jurisdiction to consider the case which the applicant put to it amounting to an error of law. 

26                  The reasons then turn to the case put for the applicant on the grounds of imputed political opinion.  This the Tribunal addressed by finding that there was no more than a remote chance that a person with no past involvement in politics and who described himself as a non-practicing Moslem would be seen as holding anti-government or pro-Islamic views of a kind that would place the applicant at risk of persecution.  This is a factual decision for the Tribunal.  It is not one for the Court.  There was a body of evidence to the contrary, which received no mention.  One might wonder why it was not mentioned and why reasons given for it were not accepted.  But it is not the role of this Court to wonder.

27                  The submission that the applicant was liable to persecution for reason of membership of a social group (pacifists, perhaps conscientious objectors, although that expression is not mentioned) was likewise rejected.  It was not rejected because there may not have been any such group in Algeria, although the Tribunal said there was no evidence that there was.  The rejection contained no real consideration of the possibility that the penalties for non-compliance with the draft might differ, depending upon the reason why there was no participation or indeed on whether there was constructive desertion. It was rejected because, even if such a group existed and its members were at risk of harm, there was:

“nothing in  [the applicant’s] past conduct which would cause the authorities to see [the applicant] as a member of such a group.  He did not object to military service previously (albeit at a time prior to the Islamic insurgency) nor has he ever expressed his views on the conduct of the Algerian military or government.  And given [the applicant’s] past conduct, I do not believe that he would act in such a way as to be seen as a member of this group if he returned to Algeria now.”

28                  It is interesting to speculate whether the Tribunal asked itself whether it was possible, even if, as it held, the applicant’s past conduct would not have caused the authorities to see him as a member of a group that he could subsequently become and be seen to have become a conscientious objector.  However, given the Tribunal’s findings that there was no evidence to support the view that conscientious objectors are seen as a social group in Algeria, it is hard to see how there has been reviewable error – just a sense of dissatisfaction, a sense that justice has not been done.

Has reviewable error been shown?

29                  In the course of the above analysis I have pointed out the following errors which could amount to reviewable error, at least if material to the outcome.  First, there is an error of law in the Tribunal’s statement of the law which was contrary to Chen that there is a need to show motivation or intention to harm – ie malignity or enmity.  Secondly, there is the failure of the Tribunal (a constructive failure on the part of the Tribunal to exercise jurisdiction) to consider whether any persecution was for reasons of political opinion – the question of causation being relevant to that constructive failure.  Finally, there is the failure to make any finding concerning the letter of call-up, contrary to s 430.  The question which then arises is whether the applicant should nevertheless succeed.

30                  The difficulty the applicant has is that the Tribunal found that the consequence to him of his failure to comply with the draft, a consequence that did not differ whether or not he had remained in Algeria or departed that country was not imprisonment (albeit that the law imposed a term of imprisonment of up to five years) or torture, although Amnesty International had indicated, as had other material before the Tribunal, that torture could not be ruled out as a possibility, but only that he would be required to serve out his call-up.  The finding is not as clear as I have suggested.  I shall return to that qualification later.  What the Tribunal said is contained in the following extract when the Tribunal was considering the argument that his refusal to serve might be construed as an imputed and adverse opinion against the government:

“As noted above, the Canadian IRD was advised that avoidance of military service is not seen as a major concern by the Algerian authorities and most people caught after trying to avoid military service are simply sent to their units to complete their term.  This is confirmed by evidence from [the applicant’s] witnesses and mother which states that this is what has happened to the young men in his local area who have resisted completing their service.  It has been argued that [the applicant’s] situation is different because he left the country to avoid military service.  However, as noted above the advice from the Swiss Office for Refugees indicates that those who have avoided military service by travelling abroad do not face significantly different treatment from other draft avoiders  if they return home ...  I do not believe there is more than a remote change that such a person would be seen as holding anti-government view or pro-Islamic views of a kind that would place him at risk of persecution.”

31                  The report is not, so far as I am aware, in the papers prepared for the Court.  There is, in a submission prepared on the applicant’s behalf, mention of a Swiss report entitled “Algeria: Military Service, Desertion and Conscientious Objection”, Berclaz, 1997 which is clearly to the contrary, when it says:

“As a rule the military criminal law and punishments therein are strictly applied.  In practice the nature of the punishment in the case of refusal to obey orders depends not only on the gravity of the offence but also on the rank of the person concerned, as well as the relevant political and military context.  Certain sources point to the fact that the flight of young men from their military obligations, depending on the already known suspicious circumstances, is sometimes judged as an admission of membership of ‘terrorist’ groups.  The number of desertions… has greatly increased in recent years.”  (emphasis added)

32                  If that were the document to which the Tribunal referred, it provided, in my view, scant support for what the Tribunal said.  There was nothing in the letter from the applicant’s mother which dealt with persons who had departed Algeria to avoid the draft. 

33                  More importantly, however, there was no consideration given by the Tribunal to what, if any, the consequence would be in the case where the draft avoider was, as the applicant was, a sergeant who had already been in the army.  The Tribunal Member ignored the question of rank.  If that is a material matter, in the sense the majority suggested in Singh, then again there has been a breach of s 476(1), by force of a failure to make a factual finding on a material matter.  In my view it is, particularly having regard to the material to which I have referred in the Swiss draft.

34                  In my view the application should be remitted to the Tribunal, differently constituted, to be heard again.  In so doing, the Tribunal will need to make a finding on the evidence before it, of what would be likely to happen to the applicant as a sergeant who has departed the country to evade the draft and has been returned.  It should make a finding on whether the

draft letter was genuine.  If the Tribunal chooses to find it is not, then that is a matter for it.  It should address the case put to it, particularly the matters to which I have referred.

Associate:

Dated:                          23 August 2000