FEDERAL COURT OF AUSTRALIA

AZAAA v Minister for Immigration and Citizenship [2009] FCA 554

MIGRATION – application for protection visa – delegate of the Minister refused application for protection visa – Tribunal affirmed decision of delegate – by consent matter remitted to Tribunal by Federal Magistrates Court for jurisdictional error in failing to consider applicant’s claim of conscientious objection to military service – Tribunal reconstituted by different member – whether Tribunal as reconstituted by different member did not have jurisdiction – whether Tribunal should have been reconstituted by same member – consideration of constitution and reconstitution provisions, ss 421, 422, 422A Migration Act 1958 (Cth) – whether s 421 can be used to reconstitute the Tribunal upon remittal

MIGRATION – whether Tribunal committed jurisdictional error – whether Tribunal asked itself the wrong question by first asking whether applicant was a “conscientious objector” rather than first asking whether, if he returned to Israel, he would refuse to perform military service and, if so, whether that refusal arose from a political other Convention related reason – whether Tribunal failed to consider whether consequences to applicant of refusing to undergo military service could amount to persecution by reason of his political beliefs – whether Tribunal failed to understand and/or address the applicant’s claim

Migration Act 1958 (Cth) ss 355, 355A, 414, 415, 418, 420, 420A, 421, 422, 422A, 425, 476A

Federal Magistrates Act 1999 (Cth) s 39

Acts Interpretation Act 1901 (Cth) s 33(1)

Migration Legislation Amendment Act 1989 (Cth)

Migration Reform Act 1992 (Cth) ss 166C, 166CA, 166CB

Migration Legislation Amendment Act (No 1) 1998 (Cth)

Convention Relating to the Status of Refugees

Protocol Relating to the Status of Refugees

Erduran v Minister for Immigration and Multicultural Affairs (2002) 122 FCR 150 cited

VCAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 1 cited

SZLQK v Minister for Immigration and Citizenship [2008] FMCA 633 considered

NBMB v Minister for Immigration and Citizenship (2008) 100 ALD 118 considered

Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39 cited

Australian Trade Commission v Underwood Exports Pty Ltd (1997) 49 ALD 426 cited

SZEPZ v Minister for Immigration and Multicultural Affairs (2007) 159 FCR 291 discussed

Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 cited

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 cited

Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 cited

R v District Court of Queensland Northern District; Ex parte Thompson (1968) 118 CLR 488 cited

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 discussed

AZAAA v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

SAD 28 of 2009

MANSFIELD J

27 MAY 2009

ADELAIDE

THE COURT ORDERS THAT:

1.                     The application be granted.

2.                     The decision of the Refugee Review Tribunal of 7 July 2008 be quashed, and the application to the Refugee Review Tribunal of 25 May 2007 be remitted to it for further consideration according to law.

3.                     The first respondent pay to the applicant his costs of the application including in the Federal Magistrates Court.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                          The applicant challenges the validity of a decision of the Refugee Review Tribunal (the Tribunal) made on 7 July 2008.  The Tribunal affirmed a decision of a delegate of the Minister made on 20 April 2007 refusing his application for a protection visa under the Migration Act 1958 (Cth) (the Act).  He seeks constitutional writs quashing the decision of the Tribunal and directing it to review the decision of the delegate of the Minister according to law.

2                          The matter is within the jurisdiction of the Federal Magistrates Court of Australia, but it has been transferred to the Court for understandable circumstances, discussed below, pursuant to s 476A(1) of the Act and s 39 of the Federal Magistrates Act 1999 (Cth).

BACKGROUND

3                          The applicant is an Israeli citizen.  He last arrived in Australia on 24 September 2005 as the holder of a Class TR/Subclass 676 (Tourist) visa.  He subsequently applied for a Class XA/Subclass 866 Protection (Permanent) visa (the protection visa) on 5 February 2007.

4                          In essence, the applicant claimed to be a refugee as defined in Art 1A(2) of the Convention Relating to the Status of Refugees as amended by the Protocol Relating to the Status of Refugees (the Convention), using those terms as defined in the Act, primarily for two reasons.  The first, and general reason, is that he is fearful of returning to Israel because of fear of injury or death from terrorist bombings or other violence in Israel.  Secondly, he claimed that if he were to return to Israel, he would have to serve in the military and be at greater risk of being injured or killed whilst serving.

5                          The delegate of the Minister concluded that the applicant did not have a well-founded fear of persecution for a Convention reason, that is a well-founded fear of harm or mistreatment for a Convention reason, on either of those bases because his fears upon returning to Israel did not come within any of the specified reasons: race, religion, nationality, membership of a particular social group or political opinion.

6                          That conclusion was upheld by the Tribunal, on the two occasions when it considered his claims. 

7                          That conclusion is not now the subject of any alleged jurisdictional error on the part of the Tribunal and it is not necessary to refer to it further. 

8                          In the course of that conclusion, the delegate noted as follows:

I accept and can understand that the applicant has a fear of being injured or killed whilst serving in the Israeli military forces, however he has not claimed to have an objection to serving or being forced to fight contrary to his genuine political, religious or moral convictions or to valid reasons of conscience.  Given that the applicant has not claimed or shown that he has a conscientious objection to military service in Israel, his reluctance to serve for fear of being injured or killed does not bring him within the ambit of the UN Convention.  As such, there is no further need to examine his claims in this regard.

9                          However, the applicant says that he has a further basis for fearing persecution, that is harm or mistreatment, for a Convention reason, namely his political opinion.  He expressed it, ultimately in a statutory declaration of 12 June 2008, in the following terms:

I understand and have been told by the Department and the Refugee Review Tribunal that I cannot be a Refugee just on the basis that I am afraid of returning to Israel.  However, I want to make it very clear that I feel unable to return to Israel because if I return to Israel I will be required to undertake 30 days national service each year.  I do not believe in violence and I do not believe in the activities and policies of the Israeli Government or the Israeli Army.  I would feel unable to do national service for the Israeli Army because of my political opinions.  A failure to undertake national service as required would produce a penalty in the form of imprisonment.

10                        If that claim was made before the delegate of the Minister, it was not appreciated by the delegate and was not considered by the delegate, as appears from the quotation appearing above.

11                        Following the delegate’s decision, the appellant applied to the Tribunal for review of that decision.  The Tribunal (constituted by Member Muling) affirmed the delegate’s decision by decision dated 26 July 2007 and handed down on 15 August 2007.

12                        It is not necessary to review in detail the reasoning of the Tribunal as so constituted.  In the course of the reasons of Member Muling, she said:

The Tribunal accepts the applicant’s claim in the hearing that if he was requested to perform compulsory reservist duties he would not do so because he did not believe or agree with fighting.  The applicant claimed since coming to Australia he had come to a realisation that it was wrong to kill others.  The Tribunal accepts that the applicant’s attitude to military service and fighting may have changed since being in Australia.  The Tribunal also accepts that the applicant may have come to learn more about the actions of the Israeli government against the Palestinians and did not agree with what was being done.

…

However, the Tribunal accepts that, despite the applicant evading reserve duty in the past and the possibility of being exempted from service again, there is more than a remote chance that the applicant may be called up for reserve service in the reasonably foreseeable future, if he returned to Israel.  The Tribunal accepts, on the basis of the applicant’s evidence, there is a real chance he may refuse to serve because of his opposition to fighting and as such he may be liable to punishment.

The Tribunal as then constituted did not consider that the imposition of any punishment on him would amount to him being treated any differently or in a discriminatory way because of his objection to serve, and so did not consider that he would be vulnerable to persecution for a Convention reason.

13                        That order was quashed, and the Tribunal was directed to determine “the matter the subject of the decision according to law”, by a consent order made by the Federal Magistrates Court on 29 January 2008.  The order noted that the Minister acknowledged that the Tribunal had committed jurisdictional error by failing to ask itself the right question, namely whether the applicant’s conscientious objection to performing military service could be regarded as a form of political opinion, or whether “conscientious objectors” could constitute a particular social group.  The Minister’s acknowledgment was based upon the decision of Gray J in Erduran v Minister for Immigration and Multicultural Affairs (2002) 122 FCR 150 at [28], affirmed in the Full Court of this Court in VCAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 1. 

THE TRIBUNAL’S REASONS

14                        Upon the remittal of the matter, the Tribunal was reconstituted by Member Thomas. On 7 July 2008, the Tribunal as then constituted affirmed the decision of the delegate refusing the applicant a protection visa.

15                        In its reasons for decision, under the heading “… whether the applicant’s ‘conscientious objection’ to performing military service could be regarded as a form of political opinion” the Tribunal referred briefly to the evidence.  It then said:

On the evidence just discussed the Tribunal accepts that the applicant objects to service in the Israeli Defence Forces, for much the same reason as he is reluctant to return to Israel at all.  That is, his objection is predominantly a subjective fear of returning to Israel because of the “terror” that has occurred in the country in the past and which continues to happen in the form of terrorist attacks and armed conflict and which result in the applicant having a fear of being injured or killed in such service.  The applicant professes to have acquired a belief in peace and objection to military service in principle only since he has been in Australia.  The Tribunal is not satisfied that a generalised claim to a belief in ‘peace’ is a meaningful expression of ‘conscientious objection’ or a manifestation of other than a ‘mere intellectual persuasion’ at best.  The Tribunal is not satisfied on the applicant’s evidence that he has genuine moral, religious or other firmly-held convictions about his claimed aversion to military service.  The Tribunal finds that the applicant is not a conscientious objector to military service.

The Tribunal notes that independent country information corroborates the explanation of compulsory military service given by the applicant.  The Tribunal notes that the enforcement of laws providing for compulsory military service (and for punishment of desertion or avoidance of such service) does not provide a basis for a claim of persecution within the meaning of the Convention: Mijoljevic v MIMA [1999] FCA 834.  The Tribunal finds that in Israel the obligations to undertake military service generally amount to a non-discriminatory law of general application.

The applicant confirmed that he had not served the 30 days per year, usually required of a reservist, in any year from 2003 to date, a total of 6 years, principally because he was studying or overseas at the appropriate time and was not required to serve.  He did not confront the Israeli Defence Force with his views about objection to military service when he was in Israel and it has not been necessary for him to do so since he completed his basic national service.  The Tribunal is not satisfied that the applicant would make known his views about objection to military service when he was in Israel nor that he would refuse to serve if he returned to Israel.

Furthermore, even if the applicant did refuse to serve in the IDF after he returned, it would be a matter for the Israeli authorities to re-assess the genuineness of the applicant’s claims to conscientious objection.  The Tribunal is not satisfied that the applicant would be subject to differential treatment either in having his case assessed or in its outcomes, and therefore, in the absence of potential discriminatory treatment on this basis, the Tribunal also finds that in Israel the obligations to undertake military service generally amount to a non-discriminatory law of general application.

That is a lengthy quotation from the Tribunal’s reasons, but it is desirable to set it out in full.  It is largely upon the interpretation or understanding of those reasons that the outcome of the present application turns.

THE GROUNDS OF THE APPLICATION

16                        The grounds of the application, and in brief the supporting contentions, were as follows:

(1)        The Tribunal as constituted by Member Thomas did not have jurisdiction to make the decision the subject of the challenge, and so the decision of Member Thomas is no decision at all.  The contention is that the matter, having been remitted to the Tribunal by order of the Federal Magistrates Court on 29 January 2008, should have been heard by the Tribunal as constituted by Member Muling;

(2)        The Tribunal committed jurisdictional error by asking itself the wrong question in determining whether the applicant had a well-founded fear of persecution by reason of his conscientious objection to military service, by first asking whether he was “a conscientious objector” rather than first asking whether, if he returned to Israel, he would refuse to perform military service and, if so, whether that refusal arose from a political or other Convention related reason.  Wound up in that contention, is the contention that the Tribunal erred in finding that, because the enforcement of laws providing for compulsory military service, and the consequences of avoidance or refusal to undertake such service, relate to non-discriminatory laws of general application, the Tribunal failed to consider whether the consequences to the applicant of refusing to undergo military service may amount to persecution by reason of his political beliefs; and

(3)        In the further alternative, the Tribunal committed jurisdictional error by failing to comply with s 425 of the Act, by failing to put the applicant on notice that it was an issue in the proceeding whether he would have made known his views about his objection to military service if he returned to Israel, and so did not give him a sufficient opportunity to give evidence, or to make submissions, about the issues arising on the review.  It will be recalled that the Tribunal as earlier constituted by Member Muling accepted that the applicant may well refuse to undertake compulsory military service.

17                        I shall address each of those contentions in turn.

WHETHER THE TRIBUNAL WAS PROPERLY CONSTITUTED BY MEMBER THOMAS

18                        Section 421 of the Act provides that, for the purposes of a particular review, the Tribunal is to be constituted, in accordance with a direction under s 421(2), by a single member.  Section 421(2) empowers the Principal Member of the Tribunal to give a written direction about who is to constitute the Tribunal for the purpose of a particular review.

19                        By direction of the Principal Member or a delegate of the Principal Member on 1 June 2007, Member Muling was constituted as the Tribunal for the purposes of the review of the applicant’s claim rejected by the delegate.  As noted above, she made her decision on 15 August 2007, but the matter was remitted to the Tribunal in accordance with the consent order made on 29 January 2008.  Member Muling remained a member of the Tribunal at that time and at material times thereafter, at least until 30 June 2009 when her current term expires.

20                        By direction of a delegate of the Principal Member given on 8 April 2008, apparently pursuant to s 421(2), Member Thomas became the member to reconstitute the Tribunal for the purposes of the review of the applicant’s claim following its remittal to the Tribunal pursuant to the consent order, albeit that that direction was given some months later.  It is not suggested that in the interim period Member Muling had attended at all to the process of further reviewing the applicant’s claim. 

21                        The applicant’s contention is that, in the circumstances, the Principal Member did not have power to reconstitute the Tribunal so that a member other than Member Muling could constitute the Tribunal for the purposes of the rehearing of the review of the applicant.  It is contended that ss 422 and 422A of the Act provide an exhaustive statement of the circumstances in which a member of the Tribunal may be replaced once a direction about who is to constitute the Tribunal for the purposes of a particular review has been given.  The Minister contends that that is not a correct construction of the relevant provisions of the Act, and that at least in the circumstances of a decision of a Tribunal member having been quashed and remitted to the Tribunal to be heard according to law, the Principal Member may appoint or direct that a different member should constitute the Tribunal for the purposes of the review thereafter.  The Minister also contends that, even if that be incorrect, the hearing and determination of the application for review by Member Thomas should be treated as a valid review as it is not the intention of the legislation that, in circumstances where there has been an inappropriate or incorrect exercise of the power to give a further direction about who is to constitute the Tribunal for the purposes of a particular review, the review itself is thereby invalid and of no effect.

22                        The applicant’s contention depends largely, if not entirely, upon the terms of ss 421, 422 and 422A of the Act.  It is therefore appropriate to set out ss 422 and 422A in full.  They provide:

422      Reconstitution of Refugee Review Tribunal – unavailability of member

(1)        If the member who constitutes the Tribunal for the purposes of a particular review:

(a)        stops being a member; or

(b)        for any reason, is not available for the purpose of the review at the place where the review is being conducted;

the Principal Member must direct another member to constitute the Tribunal for the purpose of finishing the review.

(2)        If a direction is given, the Tribunal as constituted in accordance with the direction is to continue to finish the review and may, for that purpose, have regard to any record of the proceedings of the review made by the Tribunal as previously constituted.

(3)        In exercising powers under this section, the Principal Member must have regard to the objective set out in subsection 420(1).

422A   Reconstitution of Tribunal for efficient conduct of review

(1)        The Principal Member may direct that:

(a)        the member constituting the Tribunal for a particular review be removed; and

(b)        another member constitute the Tribunal for the purposes of that review;

if the Principal Member thinks the reconstitution is in the interests of achieving the efficient conduct of the review in accordance with the objective set out in subsection 420(1).

(2)        However, the Principal Member must not give such a direction unless:

(a)        the Tribunal’s decision on the review has not been recorded in writing or given orally; and

(b)        the Principal Member has consulted:

(i)         the member constituting the Tribunal; and

(ii)        a Senior Member who is not the member constituting the Tribunal; and

(c)        either:

(i)         the Principal Member is satisfied that there is insufficient material before the Tribunal for the Tribunal to reach a decision on the review; or

(ii)        a period equal to or longer than the period prescribed for the purposes of this subparagraph has elapsed since the Tribunal was constituted.

(3)        If a direction under this section is given, the member constituting the Tribunal in accordance with the direction is to continue and finish the review and may, for that purpose, have regard to any record of the proceedings of the review made by the member who previously constituted the Tribunal.

The effect of s 421 is set out above.

23                        Section 420(1) directs the Tribunal, in carrying out its functions, to “pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick”.

24                        The Principal Member has power under s 420A from time to time to give a direction, not inconsistent with the Act or the regulations, as to the operations of the Tribunal and the conduct of reviews by the Tribunal.  The current direction (Principal Member Direction 1/2008) was in evidence.  Relevantly it is in the same terms as that applicable at the commencement of January 2008 and at the time of the applicant’s review first having been made.  It is headed “Caseload and Constitution Policy”.  Relevantly, it sets out priorities for the allocation of review applications and the means by which the initial direction to be given under s 421 by the Principal Member will be given for the constitution of the Tribunal.  No particular point is made about any of those provisions.  The Caseload and Constitution Policy has two sections relevant to the present proceeding, one headed “The constitution of the Tribunal”, and another headed “The reconstitution of the Tribunal”.  In the latter section, reference is made to a member of the Tribunal becoming unavailable (s 422) or for the efficient conduct of the review (s 422A).  There are parallel provisions relating to the Migration Review Tribunal: ss 355 and 355A.  In the section headed “The constitution of the Tribunal”, apart from the provisions dealing with the initial direction as to who is to constitute the Tribunal for the purposes of a particular review, cl 20 provides:

As a general rule, if a person has previously had a case reviewed by the Tribunal, any new case, or any case remitted for reconsideration, in which that person is an applicant will be constituted to a Member other than the Member who had previously constituted the Tribunal.

It is the applicant’s contention that cl 20 of the direction is beyond power, because it is inconsistent with the Act.

25                        There are two decisions touching upon the contention of the applicant where the Tribunal had been differently constituted following its decision being quashed and the review remitted to it.  They were given almost at the same time, and they appear to be inconsistent. 

26                        The applicant relies upon the decision of Lindsay FM in SZLQK v Minister for Immigration and Citizenship [2008] FMCA 633 (SZLQK), delivered on 23 May 2008.  His Honour there determined that the scheme of the Act required that s 421 dealt only with the initial constitution of the Tribunal, that reconstitution of the Tribunal could not be effected by using s 421 of the Act, and that reconstitution of the Tribunal could occur only if s 422 or s 422A was available in the particular circumstances: see at [14]-[15].  His Honour thought that, otherwise, there would be no need for either of those provisions: see at [23]-[24].  He specifically indicated that cl 19 of the Principal Member’s Direction issued on 9 August 2007 headed “Caseload and Constitution Policy” (which is in the same terms as cl 20 of the current direction) indicated a misapprehension on the part of the Principal Member that a remittal for reconsideration had the effect of requiring the constitution of a wholly new review: see at [33].  His Honour concluded that, in the circumstances of that case, s 422 was not available as a mechanism to reconstitute the Tribunal by the Principal Member (at [43]), and that the only means by which that could be done would be under s 422A.  The Principal Member had not made the reconstitution pursuant to that section.  Hence, there was error on the part of the Principal Member in appointing a different member to constitute the Tribunal.  Nevertheless, his Honour concluded that the error on the part of the Principal Member was not a jurisdictional error going to the validity of the decision of the Tribunal.  It was a procedural error, and so the challenge did not succeed.

27                        In NBMB v Minister for Immigration and Citizenship (2008) 100 ALD 118 (NBMB), delivered on 26 February 2008, Flick J reached a different conclusion.  As it happened, his Honour’s conclusion was not part of the ultimate reason for deciding the case.  In the course of a challenge to a decision of the Tribunal, the applicant sought leave to amend the application to allege that the reconstitution of the Tribunal on the remittal of the review had been improper.  His Honour refused leave to so amend the application, and in any event his Honour said that he would have resolved the point adversely to that applicant.  In that case, as here, the Minister said that the reconstitution of the Tribunal following the quashing of its earlier decision was made under s 421 of the Act rather than s 422A of the Act (as contemplated by Lindsay FM in SZLQK).  His Honour noted that the justice of the case, when a decision of the Tribunal has been set aside, is generally that the Tribunal be reconstituted by a different member: see also Northern NSW FM Pty Limited v Australian Broadcasting Tribunal (1990) 26 FCR 39 at 43; Australian Trade Commission v Underwood Exports Pty Ltd (1997) 49 ALD 426 at 427.  In NBMB, at [39]-[41], Flick J decided that there was no reason to impose any constraint upon the power conferred by s 421(2) in that circumstance.  As he pointed out, it is a power that can be exercised from time to time: Acts Interpretation Act 1901 (Cth), s 33(1).  The discretion to exercise that power, his Honour said, is to be exercised in the light of all the circumstances, including the order of the Federal Magistrates Court quashing the initial decision and what is recognised as “justice being seen to be done”.  His Honour also adverted to the possibility that the unavailability of a member for the purposes of s 422 may not simply be where the term of appointment has expired, or the member has died or become unable to carry out his duties, or has resigned.  Unavailability might also arise, his Honour speculated at [41], where an order is made quashing the decision of the Tribunal as originally constituted.  Otherwise, a member may remain “available” even though “justice in general is better seen to be done” if that member did not further participate in any re-hearing. 

28                        It was the legislative intention, when review of decisions of delegates of the Minister by the Immigration Review Tribunal (and subsequently by the Migration Review Tribunal and the Refugee Review Tribunal) was first introduced, that there should be an independent merits review of the delegates’ decisions.  That change was introduced by the Migration Legislation Amendment Act 1989 (Cth).  The structure then created speaks for itself.  At the time, the Minister’s Second Reading Speech referred to the new tier of review as “independent” and as a “statutorily based independent review body”: Australia, Senate, Debates (1989) Vol S132, p 922.  The first step was the establishment of what was then the Immigration Review Tribunal.  It is not necessary to trace the legislative evolution of that body to the present position.  The structure of an independent merits review process has been maintained.  It is clear that the objectives, as now found in s 420(1), of a fair just and economical review and one that is independent have persisted.

29                        In particular, as the independent review structure has been refined, those general objectives have been reinforced.  Section 420(1) was first introduced as part of the new Division 3 of the Act by the Migration Reform Act 1992 (Cth), and at the same time ss 421 and 422 were introduced (then respectively ss 166C, 166CA and 166CB).  Sections 420A and 422A were introduced by the Migration Legislation Amendment Act (No 1) 1998 (Cth).

30                        In that context, ss 422 and 422A should be seen as enabling the Principal Member to replace an initially designated member of the Tribunal in certain circumstances where the primary objectives of review as specified in s 420(1) are not being met.  The replacement power is a refined one.  It is one which may be exercised in circumstances which would not be seen as interfering with the proper performance of the review process by the designated member.  It is not necessary to paraphrase those circumstances.  The refined nature of that replacement power is emphasised, where the replacement is made to achieve the efficient conduct of the review, by the conditions on its exercise specified in s 422A(2).

31                        Those general observations do not directly resolve the particular issue now raised.  It is whether, upon remittal of a review to the Tribunal after a decision of the Tribunal has been quashed, the Principal Member may reconstitute the Tribunal by a different member from the member whose decision has been quashed, and who first constituted the Tribunal.  It is clear enough that, if the Principal Member wishes to reconstitute the Tribunal in the circumstances encompassed by ss 422 or 422A, the relevant power is found in those sections and not in s 421 itself.  It is necessary to reach that conclusion to give those provisions utility.

32                        However, it does not follow that s 421 should be read so that it excludes the reconstitution of the Tribunal by the Principal Member in circumstances such as the present.  That power is apparently unlimited in its terms.  It is limited by its context, first and obviously, so that it is not available to be exercised where the circumstances attract the potential application of ss 422 or 422A.  It is also limited by its context so that it is not available to be exercised where its exercise would, or could reasonably, be seen as interfering with the independent function of the reviewing member appointed under s 421(1).  It is not necessary to refer to all the circumstances where that might be the case.  One example might be where the designated member, acting efficiently, is sought to be replaced by the Principal Member for no apparent reason whilst conducting the review; the suspicion could reasonably arise that the removal was directed to facilitating a different outcome to the review by the selection of a different member to conduct it.

33                        The present circumstances expose no such circumstances.  Indeed, taken alone, they could not suggest that the exercise of the power under s 421(1) to reconstitute the Tribunal by the appointment of Member Thomas to conduct the review was for an improper purpose.  It is, as the initial appointment of Member Muling, an apparently entirely neutral exercise of that power.  There is no reason to read s 421(1) in a way that would stop the exercise of that power in the circumstances.

34                        There are good reasons that it should be available to be so exercised it, namely that the decision of Member Muling had been quashed for jurisdictional error.  As Flick J said in NBMB at [39]-[40]:

The decision of the Tribunal as initially constituted had been set aside by the Federal Magistrates Court.  Where such an order is made, “justice is in general better seen to be done if the Court or the Tribunal is reconstituted for the purposes of the rehearing”: Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39 at 43.  See also Australian Trade Commission v Underwood Exports Pty Ltd (1997) 49 ALD 426 at 427.  The “usual position [is] that remission to a differently constituted tribunal is the ordinary way to proceed”: Industry Research and Development Board v IMT Ltd [2001] FCA 85 at [40].

There is no reason to impose any constraint upon the power conferred by s 421(2).  The decision of the initial tribunal having been set aside, the exercise of the power conferred by s 421(2) thereafter arose for consideration.  It is a power that can be exercised from time to time: s 31 of the Acts Interpretation Act 1901 (Cth).  The discretion to be exercised by the principal member – or his delegate – was a discretion to be exercised in light of all the circumstances, including the order of the Federal Magistrates Court and what is recognised as “justice being seen to be done.”  Section 421(2) confers a power of appointment upon the principal member – or his delegate: Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518 at [40] per McHugh J.  In the present proceedings, that power was exercised by a person with an appropriate delegation.

35                        There may be reasons giving rise to jurisdictional error where the justice of the case clearly requires the appointment of another member of the Tribunal to conduct the review, such as jurisdictional error where the member of the Tribunal had formed an adverse view about the credit of the visa applicant or where the jurisdictional error is based upon a finding of bias in the member making the initial decision.  Section 421 should be construed to accommodate such circumstances.  The applicant’s contention would not do so; nor would it allow the remitted review to be reconstituted by the Principal Member at all.  Such an outcome is not one the legislature is likely to have intended.

36                        Counsel for the applicant submitted that s 421 must be confined to the initial direction of the Principal Member because there is only one “review”, and that so long as ss 422 and 422A are not available to change the designated member, the “review” must be conducted by the initially designated member.  The consent order leading to the review being remitted to the Tribunal did not quash the review, but only the decision.  Hence, it was argued, the review was ongoing and the direction appointing Member Muling to conduct it remained in force.

37                        However, in my view, the word “review” in s 421 does not have such a limited meaning.  The word “review” is not used in the Act consistently in so limited a way.  It is used as a verb, to describe the obligation of the Tribunal to “review” certain decisions: s 414.  Section 415 sets out the Powers of the Tribunal “for the purposes of the review”.  Not surprisingly, the Tribunal’s processes are recognised as including an application for review, the receipt of documents from the Secretary relevant to the review: s 418; and more generally the process of review: s 420(2).  Section 421 allows for the appointment of a member to conduct a particular review.  Clearly that must occur after the review has commenced by the application, and may be made after the receipt of the relevant information under s 418.  It is consistent with those various provisions that, at some point after a review is commenced by application a member will by s 421 be directed to constitute the Tribunal.  That does not mean the Tribunal did not exist for the purposes of the particular review until that time, or that the review did not exist until that time.  In that context, where (as here) the decision of the Tribunal as first constituted has been quashed and the Tribunal is directed “to determine the matter the subject of the decision according to law”, there is no reason to regard the process of the review from at least the point of designating a member to conduct it as having commenced.  That is, I consider that the remittal of the review to the Tribunal entitled the Principal Member to re-exercise the power under s 421 of directing a member of the Tribunal to conduct it.

38                        The applicant submitted that s 33(1) of the Acts Interpretation Act 1901 (Cth) does not support the conclusion I have reached, although Flick J in NBMB in the passage set out above also referred to it.  It relevantly provides that, where an Act confers a power, then that power may be exercised from time to time as the occasion arises, unless the contrary intention appears.  The argument was that, by reason of ss 422 and 422A, a contrary intention did appear.  I have rejected the contention that ss 422 and 422A cover all the circumstances in which the Tribunal may be reconstituted, as I consider they confine the general power in s 421 only in respect of the circumstances to which they relate.  In other circumstances, or at least in circumstances such as the present, they do not limit the availability of s 421 to permit the reconstitution of the Tribunal.  They do not reveal the contrary intention asserted on behalf of the applicant.  Section 33(1) of the Acts Interpretation Act 1901 (Cth) therefore can, as it does, make clear that the power under s 421 may – where it is available to be used – be exercised from time to time.

39                        In the light of that conclusion, I do not need to consider the alternative contention of the Minister that, in any event, s 422 applies as the circumstances enable the Tribunal to be reconstituted because the initial member is not, or is no longer “available” for the purpose of the review.  That was a possibility adverted to by Flick J in NBMB at [41].  There are some circumstances where, in the interests of justice, the remitted review might clearly be conducted by the initially appointed member (an obvious example is where the member applied the law as expressed in a binding decision, but that decision was subsequently reversed on an appeal).  Thus, it would not appear that the quashing of a decision of the initial member necessarily leads to that member then becoming no longer “available” to conduct the review.  Consequently, if that alternative contention is correct, the concept of availability would be a somewhat amorphous one, perhaps depending on the nature and gravity of the jurisdictional error in the first decision.  It is not clear that such an inquiry was intended when a decision of the Tribunal has been quashed for jurisdictional error.

40                        I note the applicant’s further argument in support of the alternative contention, based on s 422(1)(b) referring to the initial member of the Tribunal no longer being available for the purpose of the review “at the place” where the review is being conducted.  It was argued that such an expression, directing attention to a geographical focus as one of the elements for the exercise of the power, also indicates that s 422 is not available in circumstances such as the present to reconstitute the Tribunal.  It is not necessary to address that argument, in view of my conclusion above.  I note that the “place where the review is being conducted” is not defined in the Act.  Section 430A refers to the place at which a decision is to be handed down.  A review may be conducted by a member sitting in one location or State, and the visa applicant being in another location or State; sometimes a legal representative or another migration agent, or an interpreter, is in yet another location.  Sometimes, I assume, the hearing conducted under s 425 will occur away from the location or State in which the application for review was filed.  I suspect that the reference to the “place where the review is being conducted” is not a necessary limiting factor upon when a member is no longer “available” to conduct that review.  As I have said, it is not necessary to decide that question.

41                        Finally, on this issue, I refer to the decision of the Full Court in SZEPZ v Minister for Immigration and Multicultural Affairs (2007) 159 FCR 291.  I have given anxious thought to whether that decision, which is of course binding on me, dictates a different conclusion to the one I have reached.  Where the Tribunal has been differently reconstituted following the quashing of its initial decision, that case decided that s 424A did not require the Tribunal as newly constituted to re-give particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review.  I do not think that decision dictates an opposite conclusion.  Clearly, in the case of a Tribunal reconstituted under ss 422 or 422A, where the Tribunal’s task is to “finish the review”, that decision is apt.  It may also be apt where the Tribunal has been reconstituted under s 421, where – at least in one sense – the process of review by its consideration of a member of the Tribunal recommences.  In the latter circumstance, the activating fact to enliven s 424A must be the assessment of the information by the Tribunal as constituted.  If, however, as appears to have been the case in that decision, the Tribunal as reconstituted formed the same view about certain information as the Tribunal as previously constituted, because (as the Full Court pointed out at [42]) the giving of the required notice may be given administratively, the notice given earlier would satisfy s 424A.

WHETHER THE TRIBUNAL ERRED IN CONSIDERING THE APPLICANT TO BE A “CONSCIENTIOUS OBJECTOR”

42                        The second ground of review, so the applicant argues, is that the Tribunal wrongly asked whether the applicant is a conscientious objector rather than whether he would refuse to undergo further military service if he were to return to Israel.  For that reason, I have put the words “conscientious objector” in quotation marks in the heading to this part of my reasons.

43                        The critical part of its reasons are set out at [15] above.

44                        The Tribunal by its heading specifically identified the need to decide whether the applicant’s “conscientious objection” to performing military service could be regarded as a form of political opinion.

45                        It recited the evidence which, in the passage quoted, it discussed.  That evidence was largely to the effect that the applicant feared the perils associated with military service, as well as those generally associated with living in Israel, from its enemies.  The only evidence it noted (or “discussed”, to use its word) which might have given rise to a claim to object to military service on conscience grounds was that, at the hearing on 18 June 2008, the applicant said he did not agree with military service, and that “… it’s wrong.  I believe in peace.”  That was the evidence the Tribunal regarded as manifesting no more than a “mere intellectual persuasion”.  In the concluding part of its reasons on the topic, the Tribunal noted that the applicant when previously in Israel had not objected to military service.  It does not follow that he would not do so upon his return to Israel, but the Tribunal’s conclusion that it was not satisfied that the applicant would make known his views about objection to military service is not necessarily a non sequitur.  It is an assessment of the strength of the applicant’s views, as it identified them based on the evidence it discussed.

46                        The Tribunal as initially constituted had accepted that the applicant’s attitude to further military service may have changed since he had come to Australia, as he had learned more about the actions of the Israeli government as well as those of its enemies, and that

there is a real chance he may refuse to serve because of his opposition to fighting and as such he may be liable to punishment.

47                        It is not necessary to go back to the evidence upon which those findings were made, or to determine if the same material was before the Tribunal as reconstituted.  The Tribunal as reconstituted was not obliged to reach the same conclusions.  It had to reach its own views.  It identified that it had to address the issue, and it did so in the passages referred to.

48                        However, in my judgment, the Tribunal as reconstituted has failed to appreciate the detail of the evidence of the applicant about his objection to undertake military service.  The relevant terms of his statutory declaration of 12 June 2008 are set out in [9] above.  That is not referred to by the Tribunal.

49                        Moreover, in what was a relatively short hearing of 34 minutes on 18 June 2008, the Tribunal asked the applicant when he decided he was a “conscientious objector”.  He did not appear to understand the question.  He was then asked whether he had objections to military service; he said he had.  He said it was:

Because look what happen, like all the years.  Many children, many innocent people dying from the Israeli army …

I don’t agree with [military service] … it’s wrong – everything there.  No way that I cooperate with something like this.  I don’t believe it.  I believe in peace and not wait for war every day, every place, to kill every person that you recognise like Arabic, Palestinian or Lebanon – never mind.  No way.  It’s not my way.  It’s not the way that I see my life.

The Tribunal then remarked that everybody believes in peace, so it asked for more detail.  The answer was:

Yes, but not – but in Israel it’s different.  In Israel it’s different because all your life surrounded by this war, this – is Jewish again, Arabic, and everything surrounded by this.  I don’t believe it.  I don’t have any problem with Palestinian and Lebanon.  I don’t have any problem with this.  I like them.

Here, for example, in Australia I have many friends from there, and I live with them in peace and happiness, and that’s it.  And back there – if people hear me think like this way, okay, so they think that I am – “What is this? Who are you? You’re not belong to us.”  I’m then against them, because in Israel everyone – they – if you hear in the news about 100 Palestinians that died because they were – I don’t know what – the army was killing them – so everyone happy, you know, “(indistinct) beautiful – another 100 gone.”  What do you want me to say?  Yes?  No.  Straightaway, I said, “Well, what are you talking about?”  This is not the way.

…

I don’t believe in this peace.  I don’t believe that they want to do peace, not on this side.  And I don’t want to be – to keep saying, “It’s going to be all right, it’s going to be all right.”  I want to be – to do right.  I want to be in a place that it’s right (indistinct) right.

No way that I’d go back to this country, no way.  It’s a weird place.  For me it’s a weird place right now.  And, okay – for example, if I’m going to be there – they think that I am here.  That’s the main problem.  They think that I am betrayed.  They think that I’m one of them.

The “one of them”, he told the Tribunal, was one of the Arabic people, and he expressed understanding for the Palestinians and said he thought that what Israel was doing to the Palestinians was like what the Germans had done to the Jews previously: they control their lives, and “that’s disgusting”.  The expression of his views would, the applicant said, mean he would be regarded as a betrayer.  He said that the Israelis are loyal to their country, but they “live in a bubble – that everything is right and, as long as it’s against Arabic, it’s fine, it’s okay, it’s legal”.

50                        The Tribunal then asked the applicant what he would suffer from his unorthodox views.  He said, firstly, that if he refused his compulsory military service he would be gaoled.  And he said he was not going to do further military service.  He again said also that, if he openly expressed his views, he would be regarded as a traitor and would not be able to get work.

51                        The Tribunal did not indicate that it did not accept the applicant’s evidence.  There is no comment at all in its reasons regarding his credibility.  Indeed, later in its reasons, the Tribunal appears to have accepted that his political views, in some important respects, may be in opposition to those of the Israeli government.  It did so when considering whether his political views might expose him to forms of persecutory conduct (other than the consequences of refusing to undertake military service) as a member of a particular social group, either from the Israeli authorities or from vengeful groups in Israel from whom the authorities had no system to protect him.  There is no issue on this application about that part of the Tribunal’s decision.

52                        In my view, the Tribunal’s approach reveals that it did not apprehend the true nature of the applicant’s objection to undertaking further military service if he were to return to Israel.  To categorise it simply as a generalised belief in peace was wrong.  It was clearly more than that.  The Tribunal, for some reason, has apparently simply overlooked the evidence to which reference has been made.  Hence, it has not considered whether to accept or reject that evidence, and so not considered that claim of the applicant.

53                        The Tribunal was obliged to consider any claim made by the applicant which could, if the asserted facts were established to the satisfaction of the Tribunal, resolve the application for a protection visa in his favour: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 at [23] and [32] per Gummow and Callinan JJ, Hayne J agreeing, and at [65] and [74] per Kirby J.  That case involved a failure to respond to a substantial, clearly articulated argument relying upon established facts, and so a failure to exercise its jurisdiction in relation to that claim.  In NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [63], the Court (Black CJ, French and Selway JJ) said:

It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error.

See also Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at [114].

54                        The applicant raised the claim that he had a well-founded fear of persecution by reason of his political beliefs, namely that he would decline to further undertake compulsory military service and be penalised for doing so, for the Convention reason of his political beliefs.  It was, in my view, not understood and so not addressed by the Tribunal.  For the reasons given, I consider that amounts to jurisdictional error on its part.

55                        Although the jurisdictional error I have found is expressed a little differently from the contention of the applicant, in essence I have accepted the applicant’s contention.  For reasons which are not apparent, the Tribunal has diverted itself from considering whether the evidence of the applicant should be accepted on that aspect of his claim and then from considering whether on that evidence, it is satisfied of that aspect of his claim.  That is despite the heading to that section of its reasons.  It was not inappropriate to start with the question of whether the applicant is a conscientious objector, if that was taken to mean whether he would (or there was a real chance) that he would refuse to undertake further compulsory military service.  What appears to have occurred, however, is that the Tribunal has not recognised that there was an apparently cogent body of evidence on that issue and so it has not addressed that issue.

56                        I note that the Tribunal, in addition, said that any refusal to undertake military service would be assessed by the Israeli authorities in respect of its genuineness, and that their assessment would involve the application of a non-discriminatory law of general application.  That alternative step in its reasons does persuade me that its jurisdictional error is not an operative one.  If the Tribunal were to be applying a “what if I am wrong” test, the independent information on the topic which it recited includes that: no provision is made for alternatives to military service for conscientious objectors; conscientious objectors are sentenced on one of a number of charges for up to five years’ imprisonment but generally not more than one year’s imprisonment; there are no provisions such as alternate forms of service for conscientious objectors under Israeli law; and [inconsistent with other information] genuine conscientious objectors may be exempted from service if they are an “absolute pacifist” rather than an objector on “political grounds”; and that [again] there are no legal provisions for conscientious objectors.  There is no discussion of those various pieces of information.  The concluding paragraph of the Tribunal’s reasons set out at [15] above therefore appears to be more an aside than serious consideration of the issue, for otherwise it could not have failed to discuss that conflicting information.

57                        I do not need to consider the contention that the Tribunal, by focusing on the term “conscientious objector” as it is explained in the context of s 29A of the National Service Act 1951 (Cth) in R v District Court of Queensland Northern District; Ex parte Thompson (1968) 118 CLR 488 at 492, failed to ask itself the correct question under the Convention.  I have reached the view that it failed to consider the applicant’s claim to have been a conscientious objector according to law.

WHETHER THE TRIBUNAL COMPLIED WITH SECTION 425 OF THE ACT

58                        The third contention of the applicant can be shortly dealt with.

59                        Section 425(1) obliges the Tribunal to invite the applicant to appear to give evidence and present arguments relating to the issues arising in relation to the decision under review.  The nature and extent of that obligation, in the sense of the Tribunal putting the applicant on notice as to the matters he should address at the hearing, was discussed by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [35], [36] and [47].  In particular, at [36] the Court (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ) said:

Ordinarily then, as was the case here, the Tribunal will begin its interview of an applicant who has accepted the Tribunal’s invitation to appear, knowing that it is not persuaded by the material already before it to decide the review in the applicant’s favour.  That lack of persuasion may be based on particular questions the Tribunal has about specific aspects of the material already before it; it may be based on nothing more particular than a general unease about the veracity of what is revealed in that material.  But unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision.

60                        It is appropriate, where there has been a remittal of an earlier decision of the Tribunal, to apply that observation to the reasons given by the Tribunal as earlier constituted, provided of course that the reasons for that decision being quashed do not negate the relevant earlier reasons.

61                        The problem here, however, is not that the Tribunal did not ask the applicant to expand on those aspects of his claim based upon his asserted political beliefs which would lead him not to undertake further military service and to explain why that account should be accepted.  The problem here, as I have found, is simply that the Tribunal appears not to have recognised that the applicant did expand on that aspect of his claim as it did not then consider whether to accept his evidence or to consider its consequences.  In my view, the Tribunal’s error was not in failing to fulfil the requirements of s 425.  It is a different one.

CONCLUSION

62                        For those reasons, I direct that the decision of the Tribunal given on 7 July 2008 be quashed, and the matter constituting the review instigated by application made on 25 May 2007 be remitted to the Tribunal again for consideration according to law.  The Minister should pay to the applicant his costs of the application.

Associate:

Dated:         27 May 2009