FEDERAL COURT OF AUSTRALIA

MIGRATION - appeal from decision of single judge to set aside the decision of the Refugee Review Tribunal not to grant protection visa and remit the matter to the Tribunal - Armenian applicant - whether the Tribunal failed to consider applicant was a member of particular social group of deserters and draft evaders - whether Tribunal failed to make findings of fact - where Tribunal failed to have regard to all evidence - non-observance of procedures by Tribunal - failure to provide adequate reasons - discretion of court to remit matter to the Tribunal - whether a matter is futile - objection to military service in Nagorno-Karabakh war.

Migration Act 1958 (Cth), ss 420(2)(b) , 425(1)(b), 430(1)(b), (c), (d), 476(1)(a), 481(1)(b)

Migration Regulations

Thevendram v Minister for Immigration & Multicultural Affairs [1999] FCA 182 followed

Rahim v Minister for Immigration & Multicultural Affairs (1997) 78 FCR 223 [at 228] referred to

Ranatora v Minister for Immigration & Multicultural Affairs (1998) 154 ALR 693 [at 700] referred to/followed

Nguyen v Minister for Immigration & Multicultural Affairs (1998) 158 ALR 639 [at 647-8] referred to

VG 211 OF 1998

EINFELD, NORTH & EMMETT JJ

MELBOURNE

20 MAY 1999

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1. The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT OF JUSTICES EINFELD & NORTH

1 The background facts, the reasoning of the Refugee Review Tribunal ("the Tribunal"), the reasoning of the primary Judge, and the submissions on appeal have been set out in the judgment of Emmett J, and we therefore will not repeat them unless necessary for convenience in understanding these reasons. The Tribunal affirmed the decision of the Minister's delegate not to grant Mr Israelian a protection visa.

2 Mr Israelian's case before the Tribunal was primarily concerned with the claim that he feared persecution for the reason that he was a conscientious objector. The Tribunal treated this claim as one based on persecution for the reason of political opinion. Mr Israelian also based the application on his fear of persecution by reason of membership of a particular social group, namely deserters and/or draft evaders. The Tribunal summarised the case as follows:

It was argued that his persecution would flow from his political opinions and his membership of a particular social group, comprising deserters and/or draft evaders.

3 The Tribunal analysed in detail the claim that Mr Israelian was a conscientious objector. It found that he was not. Then, the Tribunal considered an alternative approach on the assumption that Mr Israelian had established that he was a conscientious objector. On the alternative basis it was necessary for Mr Israelian to show that his fear of persecution was for the reason that he was a conscientious objector. The final part of the Tribunal's decision was introduced with the following passage:

In the case of Istvan Magyari v MIMA (O'Loughlin J, Federal Court, No SG 54 of 1996, unreported, 22 May 1997), the Court emphasised that, even if a person were a conscientious objector, there was still a need for a Convention reason for the persecution:

"Even if it be accepted that the applicant is a conscientious objector and even if it be assumed that [his country] treats such a person harshly (to the point of persecution in the legal sense) one is left wondering whether the reason for the persecution is a convention reason." (at 23)

4 Shortly after there followed a discussion which should be set out in full:

In the Applicant's case, even if his objection to conscription was conscientious and convention-related, the evidence he gave suggests that State punishment does not arise from political opinion, religious belief, nationality, race or membership of a particular social group. He said his brother, who has also served for two years in the Soviet military, evaded a call-up notice but then returned home and was exempted from serving because he has a small child. He has not claimed that his parents or his brother have been detained in an effort to force him to return, despite the U.S. State Department information that such things occur (Country Reports on Human Rights Practices for 1996: Armenia at 5). In addition, as confirmed by Mr. Kateb, there has been cease-fire and a lull in fighting since May 1994, although there have been some border skirmishes. While there may be an intensification in seeking conscripts, it is notable that the Applicant is not a conscript but, in effect, a Reservist like his brother. It is also clear that, despite there being a ten year maximum term of imprisonment for draft evaders, that penalty is not always invoked, as in the case of the Applicant's brother. The flexibility of the authorities in applying or failing to apply a penalty supports the conclusion that political opinions are not, in the absence of other evidence, imputed to people who do not answer a call-up notice. In particular, the brother's experience demonstrates that reservists can expect lenient treatment if they evade call-up notices, contrary to the claim that they are imputed with dissident political opinions for that reason.

A consideration of the circumstances leads to the conclusion that the Applicant is not a conscientious objector. Even if he did have a conscientious objection, his punishment for avoiding his call-up notice would not be motivated by a Convention reason but would be the application of a law of common application, imposed by the authorities regardless of those authorities imputing any political opinion to the Applicant or otherwise being motivated by Convention reasons.

As the balance of the Applicant's fears arise from his objection to fighting in the war over NK, the Tribunal finds that they are not Convention related. Thus, if he is denied the internal passport he requires to pursue accommodation and work, this would not be for one of the reasons in the Convention. It is noted, however, that the Applicant's parents still live in Armenia and it is not unreasonable that the Applicant should live with them or his brother, at least until he makes more suitable arrangements. Further, it is apparent that his brother has accommodation, despite evading his call-up notice.

In summary, the Tribunal finds that the Applicant is an Armenian citizen who is entitled to return to his country of nationality. His does not hold genuine conscientious objections to military service and, even if he was to be punished on return, such punishment would not be motivated by Convention reasons. His fears related to work and accommodation or other types of harm he may encounter if he returns all flow from his desire not to comply with his call-up notice and are, therefore, not Convention related. [underlining added]

5 The context of this discussion was a consideration whether the punishment or other disadvantages would flow to Mr Israelian because he was a conscientious objector. The underlined references to Convention reasons or Convention-related reasons are probably just formulaic references to all the grounds available under the Convention. If they possess any further significance it is as references to the reason under consideration, namely, the reason that Mr Israelian was a conscientious objector. The discussion should not be viewed as referring to the other basis of Mr Israelian's claim, namely, his alleged membership of the particular social group. There is only one specific reference to that ground. The reference is in the first sentence of the extracted passage. That reference is part of a catalogue of all the Convention grounds. No part of the reasoning supports a conclusion that the reference is to the argument that Mr Israelian feared persecution by reason of his membership of a particular social group comprising deserters and/or draft evaders. The only social group which the reasoning may be seen to touch upon is the group of conscientious objectors. Even if the reference in the first sentence was to that particular social group, the decision does not address the argument concerning the alleged social group comprising deserters and/or draft evaders.

6 On a fair and not over-critical reading of the reasons, the Tribunal did not deal with this argument at all. In order to do so it was necessary to examine whether deserters and/or draft evaders were a particular social group and, if so, whether they were persecuted by reason of their membership of that group. This exercise was not done. Even if the decision can be read as stating an express conclusion that Mr Israelian was not persecuted by reason of his membership of a group comprising deserters and/or draft evaders, there is no reasoning process or factual analysis exposed which supports the conclusion. Consequently, the Tribunal failed to comply with section 430(1)(b), (c) and (d) which provides:

(1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that: ...

...

(b) sets out the reasons for the decision; and

(c) sets out the findings on any material questions of fact; and

(d) refers to the evidence or any other material on which the findings of fact were based.

7 The failure to comply with sections 430(1)(b)-(d) was a failure to observe procedures required by the Act and hence gave rise to a right of review under section 476(1)(a) of the Act: Thevendram v Minister for Immigration & Multicultural Affairs [1999] FCA 182.

8 The Minister then argued that the decision of the Tribunal should not be set aside because there was no evidence before the Tribunal upon which it could find that Mr Israelian held a fear of persecution by reason of membership of the particular social group identified. It would therefore be fruitless the Minister said, to refer the matter back to the Tribunal for further hearing because the application was bound to fail.

9 In Rahim v Minister for Immigration & Multicultural Affairs (1997) 78 FCR 223 at 228 Sackville J said that the Court will not remit a matter to the Tribunal if to do so would be futile. In Ranatora v Minister for Immigration & Multicultural Affairs (1998) 154 ALR 693 at 700, Hill J said "[i]f the case is one where only one decision is open to the tribunal it would be pointless to remit the matter to the tribunal". He explained that it is often difficult for the Court, not charged with fact-finding, to conclude that no answer is open other than one adverse to the applicants, especially where the Tribunal in making findings of fact does not provide detailed facts which go to the matters in question. Where there are matters that still require further fact finding, it cannot be thought futile to remit the matter to the Tribunal for further consideration, "even if the applicant's case may be said not to be on its face an easy one". See also Nguyen v Minister for Immigration & Multicultural Affairs (1998) 158 ALR 639 at 647-8.

10 It will be a very rare case where, having found that the Tribunal has not addressed an important argument of the applicant, the Court, particularly a Full Court will, in effect, consider the facts for itself to determine whether the case before the Tribunal is likely to succeed. The system established by the legislation requires a decision by the administrative decision-maker on the merits followed by a process of judicial review. An applicant is entitled to a full consideration of the case at each stage to the extent of the jurisdiction conferred on the particular body hearing the matter. A consideration by the Court of the facts before the Tribunal, even for a limited purpose, is no substitute for a proper consideration by the Tribunal itself. One important reason for this which underlines the limited judicial review role of the Court is that the Tribunal is a specialist body with extensive experience of the jurisdiction. It has the power to obtain evidence for itself as it considers necessary (section 425(1)(b)). Where the Tribunal fails to address an important argument of the applicant the Court will not know whether the Tribunal has specialist information or whether it would exercise its power to seek evidence for itself. Thus, even if the evidence produced by the parties could not support a decision in favour of the applicant, there is no certainty that the Tribunal would decide against the applicant.

11 Where the Court finds that an important argument of the applicant which depends on findings of fact has not been considered by the Tribunal and the Tribunal has thereby acted in breach of section 430(1), the Court should set aside the decision of the Tribunal and refer the application or an issue in the application back to the Tribunal to consider the matter (section 481(1)(b)). Whilst the decision to refer an application or part of an application back to the Tribunal is an exercise of discretion, there are unlikely to be any circumstances in which it would be a proper exercise of discretion for the Court to foreclose full consideration of the facts by the Tribunal by failing to refer the issue back to the Tribunal for determination in such circumstances.

12 Of course, the existence of some evidence that would support the applicant's case will fortify the Court in determining to refer an issue back to the Tribunal. In the present case the applicant produced evidence to the Tribunal of a newspaper report that the UNHCR had concluded that Armenian draft resisters should have refugee status. The existence of this influential evidence, although not determinative on its own, confirms our view that part of this application should be referred back to the Tribunal. The further consideration by the Tribunal should be limited to the question whether Mr Israelian had a well-founded fear of persecution for the reason of his membership of a particular social group comprising draft evaders and/or deserters.

13 We would dismiss the appeal with costs.

REASONS FOR JUDGMENT OF EMMETT J

14 This is an appeal by the Minister for Immigration and Multicultural Affairs ("the Minister") from a decision of a judge of the Court. The primary judge allowed an application for review of a decision of the Refugee Review Tribunal ("the Tribunal") and ordered that the Tribunal's decision be set aside.

15 The Tribunal's decision was to affirm a decision of the delegate of the Minister not to grant a protection visa to Oganes Israelian ("the Respondent"). His Honour ordered that the matter be referred to the Tribunal to determine whether the respondent had a well founded fear of being persecuted for the reason of membership of a particular social group.

16 The decision of the Minister's delegate was made on 6 May 1994. That decision was affirmed by the Tribunal on 23 March 1994. Pursuant to an application for judicial review, this Court remitted the application for reconsideration by the Tribunal. A decision upon that reconsideration was made on 7 August 1997 by the Tribunal differently constituted. It is that decision which was the subject of the application for review now under appeal.

17 The Respondent is a twenty-nine year old male citizen of Armenia who arrived in Australia on 8 September 1992. On 29 October 1993 he applied for a protection visa. The Respondent said that he had been called up for military service in January 1993 while he was out of the country. He evaded the draft by not responding to the call-up notice because he was out of the country. He said that he would be treated as a deserter and forced to serve in the military at the front line. He was an active supporter of the communist party in Armenia and, because he would be unpopular for that reason, he would be sent to the war front when he was called up. He said the position would be different if he had migrated from Armenia. However, he only had permission to make an overseas trip but had not returned.

18 In its reasons for decision, the Tribunal acknowledged that the Respondent's claims are related to his objection to the war over the area known as Nagorno-Karabakh. It was contended by the Respondent that, while he is not opposed to all wars, he has a particular conscientious objection to that war. The Tribunal noted that, at various times, the Respondent had said his reasons for that objection are that:

* The war is futile.

1.   The war has no resolution in sight unless the ethnic Armenians withdraw from Nagorno-Karabakh and relocate to Armenia.

2.   The Respondent does not wish to fight former colleagues from the Soviet Army.

3.   The Respondent does not want to be sent to the front but, as a conscript, he will be sent to the front.

4.   The Respondent does not want to be killed in a pointless war.

5.   The war has been condemned by the international community.

6.   The Respondent has already served two years in the Soviet Army and does not want to waste any more time in military service.

7.   The Respondent does not want to be involved in a war that resorts to ethnic cleansing.

19 The Tribunal found that the essence of the Respondent's objections was that he did not wish to risk his life for a purpose that did not benefit ethnic Armenians and he did not wish to spend further time in military service as he had already served two years. The Tribunal held that, while it sympathised with those motives, those motives do not disclose a genuinely held conscientious objection to the war over Nagorno-Karabakh. The Tribunal placed emphasis on the fact that the Respondent did not express objections to killing other people in war situations, "subject to the inference that they were not Armenians".

20 The Tribunal found that, while there may be an intensification in conscription in Armenia, the Respondent is not a conscript but, in effect, a reservist. The Tribunal also found that, despite there being a ten year maximum term of imprisonment for draft evaders, that penalty is not always invoked. The case of the Respondent's brother was cited as an example. The Respondent's brother, who had also served for two years in the Soviet army, evaded a call up notice but then returned home and was exempted from serving because he had a small child.

21 The Tribunal found that the flexibility of the authorities in applying or failing to apply the penalty supports the conclusion that political opinions are not, in the absence of other evidence, imputed to people who do not answer a call up notice. In particular, the experience of the Respondent's brother demonstrates that reservists can expect lenient treatment if they avoid call up notices, contrary to any claim that they are imputed with dissident political opinions for that reason.

22 The Tribunal found that the Respondent is an Armenian citizen who is entitled to return to his country of nationality and that the Respondent does not hold genuine conscientious objections to military service. The Tribunal concluded that the evidence suggested that any punishment which might be inflicted upon the Respondent by reason of his refusing to serve in the Army does not arise from political opinion, religious belief, nationality, race or membership of a particular social group within the meaning of the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol ("the Convention"). The Tribunal found, therefore, that any punishment of the Respondent for avoiding his call up notice would not be motivated by a Convention reason but would be the application of a law of common application, imposed by the authorities regardless of any imputation of a political opinion to the Respondent.

23 In the course of its reasons, the Tribunal referred to the UN Report, "Conscientious Objection to Military Service" by Eide and Mubanga-Chipoya, New York 1985 and cited the following passage:

"States should recognise by law the right to be released from service in armed forces which the objector considers likely to:

1. be engaged in gross violations of human rights

2. be used in action amounting to or approaching genocide...

3. used for illegal occupation of foreign territory...

4. resort to the use of weapons of mass destruction or weapons which have been specifically outlawed under international law or to use methods which cause unnecessary suffering."

24 The Tribunal also referred to a passage from the United Nations High Commissioner for Refugees' Handbook stating:

"...Where, however, the type of military action, with which an individual does not wish to be associated, is condemned by the international community as contrary to basic rules of human conduct, punishment for desertion or draft evasion could, in the light of all other requirements of the definition, in itself be regarded as persecution."

25 The Tribunal had before it a report concerning human rights developments in Armenia which contained the following passage:

"To bolster the ranks of its army, the Armenia government [sic] resorted to press gang raids to enlist recruits. Draft raids intensified... after [a decree] was issued, instituting a three month call up for men up to age 45. Military policy would seal off public areas, such as squares and round up anyone who looked to be draft age. All male Armenian citizens between the ages of 25 and 45 were forbidden to leave the country without special permission. According to a report in an influential German daily Sueddeutsch Zeitung, the United Nations High Commissioner for Refugees issued an order by which Armenian draft resisters should be given refugee status."

(Extract, Human Rights Watch World Report 1995, Human Rights Watch New York, 1995)

26 The Respondent contended before the primary judge that, having regard to the severity of the punishment referred to above, punishment for draft evasion or desertion would amount to persecution of the Respondent by reason of his membership of a particular social group within the meaning of the Convention. In dealing with that argument, his Honour referred to the German press report mentioned in the extract set out above and observed that, if it were factually correct, it may amount to the requisite condemnation by the international community of the military action in Nagorno-Karabakh as being contrary to basic rules of human conduct. His Honour considered that if it were correct, that would open the door to the possibility of a finding of fact that, in this particular case, the punishment for desertion or draft evasion could be persecution of the Respondent as a member of a particular social group.

27 On appeal, counsel for the Respondent conceded in effect that it was not essential that the Tribunal come to a view concerning whether the international community had condemned the military action in Nagorno-Karabakh. It was accepted that such a finding was not strictly necessary independently of "the social group issue" because the issue of international condemnation of non international armed conflict relates to the treatment of claims of partial conscientious objection. Counsel for the Respondent accepted that the factual finding made by the Tribunal that the Respondent did not hold a conscientious objection to military service in Nagorno-Karabakh was not an issue before the primary judge. However, the Respondent supported the primary judge's conclusion that the Tribunal had not adequately dealt with the question of whether the Respondent feared persecution by reason of membership of a particular social group, being the group comprising deserters and/or draft evaders in Armenia.

28 The primary judge concluded that the Tribunal failed to form a view about the crucial issues which the definition of "refugee" in the Convention required it to examine. His Honour held that the Tribunal:

"...ought not to have rejected the [Respondent's] claim without coming to a view, if it could, concerning whether the international community, through the United Nations High Commissioner for Refugees, had condemned the military action in Nagorno-Karabakh as contrary to basic rules of human conduct and whether, in all the circumstances of the matter, deserters and/or draft evaders in Armenia were a particular social group."

29 His Honour concluded that the Tribunal failed properly to consider all the evidence of government policy towards deserters and draft evaders in the context of the question whether the Respondent feared persecution as a consequence of membership of "a particular social group comprising deserters and draft evaders (if a finding were made such persons constituted a defined group)".

30 In that context, his Honour made the following observations:

"The argument would be that the particular social group was defined by the acts of desertion or draft evasion and that such characteristic unites them. The fact requires to be found whether such acts define a group. That may or may not, according to the facts to be found in relation to the country, give rise to a well founded fear of persecution because of penalties subsequently imposed in relation to those defining acts. If that were found, this would not be a case where the group contended for is defined by the fact its members face a particular form of persecutory treatment. The fact to be found was whether the attribute of being a deserter and draft evader identified such persons as a particular social group. In that fact finding it is permissible to take into account the actions of the persecutors to identify the group but such actions would not themselves define the particular social group."

31 Counsel for the Respondent, however, was unable to formulate possible findings of fact which might have been made by the Tribunal which would have constituted deserters and draft evaders as a particular social group within the meaning of the Convention. He referred, in general terms, to possible findings as to the particular circumstances applying in Armenia at the present time in relation to treatment of deserters and draft evaders who would otherwise be required to fight the particular war involving Nagorno-Karabakh. However, counsel was unable to formulate specific possible findings which might single out particular deserters and draft evaders from a group comprising simply those citizens who contravene the municipal law of Armenia relating to army service.

32 There may be an element of uncertainty in the language adopted by the primary judge in criticising the Tribunal for having rejected the Respondent's claim "without coming to a view, if it could". It is not clear whether his Honour was referring to the possibility that the Tribunal ought to have made further enquiries because its fact finding and investigative procedure was inadequate or whether his Honour was simply saying that the Tribunal should have come to a view on the basis of the material before it.

33 If the latter is the correct interpretation, it is difficult to see how the Tribunal could have come to a view, on the material before it, that deserters or draft evaders constitute a particular social group. That is to say, in so far as they are persecuted by the harshness of punishment, that would be no more than the application of a law of common application to them in respect of their contravention of that law. In any event, that would be a finding of fact which would not be subject to review in the Court.

34 If the former is the true interpretation, however, as the Respondent contended, there was nothing to indicate what kind of material might possibly be available. The one straw in the wind was the reference to the German newspaper report that the United Nations High Commissioner for Refugees had indicated that Armenian draft resisters should be given refugee status. There was apparently nothing more in the material before the Tribunal. The argument was that, if the United Nations High Commissioner for Refugees had expressed such a view, further enquiries were called for that may have elicited information which suggested that deserters and draft evaders, in the context of the Nagorno-Karabakh conflict, were being treated in a differential manner such as would constitute them a particular social group.

35 The difficulty with such an argument is that it is not clear what further inquiries could or should have been made by the Tribunal. There is certainly no material before the Court to indicate what might possibly have been ascertained by such an inquiry. On the material before the Tribunal, there is no basis for concluding that deserters and draft evaders constitute a particular social group. They are simply a particular group of law breakers, members of whom are punished, in the same way as all other citizens, for failing to comply with the requirements of the law of Armenia.

36 In the absence of anything further before the Tribunal, and in the absence of any indication as to what might have been obtained had further enquiries been made, I do not see any basis for interfering with the determination of fact made by the Tribunal. The Tribunal considered the material before it and reached a conclusion, on the basis of that material, that deserters or draft evaders do not constitute a "particular social group" within the meaning of that expression in the Convention. In my opinion, the learned primary judge erred in so far as he held that there was material before the Tribunal which would compel additional enquiry as to whether deserters or draft evaders could constitute a particular social group. Accordingly, I would uphold the appeal, set aside the order made by the primary judge and substitute an order that the application for review be dismissed with costs.

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