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1 This is an appeal from a decision of Moore J handed down on 24 April 2003. His Honour dismissed an application brought by the appellant for judicial review of a decision of the Refugee Review Tribunal given on 2 January 2003.

NAJD v Minister for Immigration & Multicultural & Indigenous Affairs [2003]

NAJD v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 216 (27 August 2003)
Last Updated: 4 September 2003


FEDERAL COURT OF AUSTRALIA
NAJD v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCAFC 216


NAJD v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N578 of 2003

MADGWICK, JACOBSON AND BENNETT JJ

27 AUGUST 2003

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA



NEW SOUTH WALES DISTRICT REGISTRY
N578 of 2003




BETWEEN:
NAJD

APPLICANT


AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT


JUDGES:
MADGWICK, JACOBSON & BENNETT JJ


DATE OF ORDER:
27 AUGUST 2003


WHERE MADE:
SYDNEY




THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant is to pay the respondent's costs of the appeal.

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

IN THE FEDERAL COURT OF AUSTRALIA



NEW SOUTH WALES DISTRICT REGISTRY
N578 of 2003




BETWEEN:
NAJD

APPLICANT


AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT




JUDGES:
MADGWICK, JACOBSON & BENNETT JJ


DATE:
27 AUGUST 2003


PLACE:
SYDNEY





REASONS FOR JUDGMENT
(revised from transcript)

THE COURT:

1 This is an appeal from a decision of Moore J handed down on 24 April 2003. His Honour dismissed an application brought by the appellant for judicial review of a decision of the Refugee Review Tribunal given on 2 January 2003.

2 The appellant, an Israeli citizen, claimed to have a religious objection to serving in the Israeli Army Reserve. He further claimed to hold political opinions critical of the attitudes, as he perceived them, of most Israelis to Palestinian Arabs. On account of these beliefs and opinions he claimed to fear persecution in Israel.

3 At the hearing before the Tribunal, the appellant was a 45 year old Jewish man who had acquired Israeli citizenship about 10 years earlier. A few years before that he had immigrated to Israel from a third country which was his native country. He had lived at the same address in Israel from 1989 until he left for Australia although he had a short absence from that address during the 1991 Gulf War when he stayed at a kibbutz. The appellant arrived in Australia on 30 January 1997 and applied for a protection visa over 5 years later on 26 September 2002.

4 His application for a protection visa was refused by a delegate of the respondent Minister and the Refugee Review Tribunal declined to upset the decision of the delegate.

5 As to the question of religiously based conscientious objection to service in the Reserve, it emerged that the appellant had begun his compulsory military service in the Israeli Defence Force ("IDF") in the early 1990s. As he was then over the age of 24 the period of the service for which he was liable was reduced. He completed his full time service within two months.

6 Thereafter, until shortly before his departure from Israel, the appellant undertook reservist duties one month in each year. These duties included active operational duties such as guarding settlers in the occupied territories and guarding military premises. The appellant claims that his experiences deeply affected him as he believed that killing anyone was wrong and he had some feelings of compassion for the Arabs. In 1993 the appellant visited Australia. In 1994, he first inquired of an Army officer as to whether there was any means by which he could avoid military service. He received a discouraging reply, but nevertheless continued to perform his reservist duties until his departure from Israel in 1997. The appellant believed that word had spread in various quarters in Israeli society of his pacifist views and of the degree of empathy that he felt for the Palestinians. He claimed to believe that his telephone was tapped and that he was the victim of a smear campaign which, among other things, falsely labelled him as a homosexual.

7 Moore J summarised the matter succinctly:

`I have read the reasons of the Tribunal. It identified three aspects of the claims of the applicant. One concerned the consequences of the applicant's desire not to serve in the army reserve because of his religious beliefs; another concerned the consequences of the applicant expressing his views about the prevailing attitude of the Israelis to the Arabs; and the last concerned the consequences to the applicant of being perceived to be homosexual. In relation to each of these matters the Tribunal concluded the applicant was not at risk of harm if he were to return to Israel.
As to the first matter, the Tribunal ultimately concluded it was unlikely the applicant would be called upon to serve, and as to the last two matters, it concluded, in substance, that in contemporary Israeli society, neither would expose the applicant to harm which might constitute persecution. These conclusions founded the ultimate conclusion that the applicant did not have a well founded fear of persecution. It is not apparent to me that the Tribunal's

consideration of each of these matters and the applicant's case as a whole is infected by judicially reviewable legal error. It may have overstated the position concerning the connection between military service and the Convention (see Erduran v Minister for Immigration & Multicultural & Indigenous Affairs (supra) at [28] but even if this was an error, it was not material given the Tribunal's conclusion about the prospects of the applicant again being required to serve in the reserve.

Accordingly, the application should be dismissed with costs.'

8 His Honour's reference in that passage to "the connection between military service and the Convention" is to the view expressed by the Tribunal that it is a "principle" that the enforcement of compulsory military service does not, of itself, constitute persecution for the purposes of the Refugee Convention. That is not to say, however, that the Tribunal failed to recognise the principles stated in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 223 at [54]-[55]. The Tribunal considered that the appellant's behaviour was inconsistent with that of a person who held genuine religious convictions against serving in the military.

9 In any event, the Tribunal Member stated that the independent evidence before him made it clear that Reserve Military Service in Israel was required only to the age of 42 whereas the appellant was 45 at the time of the hearing. Thus the Tribunal found that it was highly unlikely that the appellant would be called upon to perform military service.

10 The appellant was unrepresented before Moore J and before us. He had some assistance from a refugee support service in framing his case before the Tribunal.

11 The application to the Court, with which Moore J dealt, essentially complained of a lack of interest by the Tribunal in the appellant's story and some misunderstanding of details of that story. The notice of appeal complains of matters going to the factual merits of the appellant's case. The appellant's written submissions are in a similar vein. His oral submissions were no more to the point of questions that could properly concern us.

12 None of the matters referred to by Moore J or argued before us demonstrated any denial of procedural fairness or involved any error of law.

13 Moore J was clearly right. There was no jurisdictional error. Neither Moore J, nor the Full Court on appeal from him, has the ability to review the factual merits of the Tribunal's decision. No doubt the distinction is difficult for many non lawyers to grasp. Nevertheless the appeal must be dismissed.

Disposition

14 The appeal will be dismissed. The appellant is to pay the respondent's costs of the appeal.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of this Honourable Court.




Associate:

Dated: 27 August 2003

The Appellant appeared in person.







Counsel for the Respondent:
T Reilly






Solicitor for the Respondent:
Blake Dawson Waldron






Date of Hearing:
27 August 2003






Date of Judgment:
27 August 2003


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