analysis
20 The appellants must demonstrate that the judgment under appeal is a consequence of some legal, factual or discretionary error: Allesch v Maunz (2000) 203 CLR 172 at [23]; Abeyesinghe v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1558 at [4]; MZWVH v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1016 at [10]; SZJJC v Minister for Immigration and Citizenship [2008] FCA 614 at [13]-[15].
21 On appeal, Counsel for the appellants submitted that the judgment under appeal failed to identify the jurisdictional error in the decision of the Reviewer. The jurisdictional error was said to be a failure on the part of the Reviewer to deal with a claim raised by the evidence and contentions before her which, if resolved in one way, would or could be dispositive of the review: NABE v Minister for Immigration (2004) 144 FCR 1 at [63]. Counsel for the appellants further submitted that the "claim" that was not dealt with by the Reviewer was the claim that the second appellant was a conscientious objector on the grounds of his political opinions: see [15] above.
22 The question of a refusal to perform compulsory military service on the basis of a political opinion was considered in Erduran where Gray J found at [18] that:
… There is a line of authority establishing that the liability of a person to punishment for failing to fulfil obligations for military service does not give rise to persecution for a Convention reason. See Murillo-Nunez v Minister for Immigration and Ethnic Affairs (1995) 63 FCR 150 at 159; Timic v Minister for Immigration and Multicultural Affairs [1998] FCA 1750 at p 3; Minister for Immigration and Multicultural Affairs v Shaibo [2000] FCA 600 at [28] and Trpeski v Minister for Immigration and Multicultural Affairs [2000] FCA 841 at [27]-[28].
23 In relation to the ground of conscientious objection Gray J found that:
[19] The Tribunal's analysis did not go far enough. There is also a line of authority to the effect that a refusal to undergo military service on the ground of conscientious objection to such service may give rise to a well-founded fear of persecution for a Convention reason. In Magyari v Minister for Immigration and Multicultural Affairs (1997) 50 ALD 341, O'Loughlin J cited the Office of the United Nations High Commissioner for Refugees Handbook on Procedures and Criteria for Determining Refugee Status (1992) and Hathaway, The Law of Refugee Status (1991). His Honour accepted:
… that there may be cases in which conscientious objection to military service will be the basis of a well-founded fear of persecution for a convention reason. For example, the refusal to perform military service may derive from one's religious beliefs, or it may be by virtue of one's political opinions.
[20] In Mehenni v Minister for Immigration and Multicultural Affairs (1999) 164 ALR 192 at 197-198 [17] Lehane J said:
Conscientious objection, whether the objection of a pacifist to all military service or a 'selective' objection, may reflect religious beliefs or political opinions; and there is no reason to doubt that conscientious objectors, or a class of conscientious objectors defined by reference to a particular belief or opinion, may be, for the purposes of the Convention, a 'particular social group', defined as such by some characteristic, attribute, activity, belief, interest or goal that unites its members.
[21] In Mijoljevic v Minister for Immigration & Multicultural Affairs, on which the Tribunal relied, at [21], Branson J recognised that:
It may be that pacifist views which do not have a religious or political base, and which are not part of the belief system of a particular social group, are irrelevant to a claim to be entitled to a protection visa.
[22] Hill J discussed the matter at some length in Applicant N 403 of 2000 v Minister for Immigration and Multicultural Affairs [2000] FCA 1088 at [20]-[27]. At [23], his Honour said:
The draft laws as implemented in Australia during the Vietnam War permitted those with real conscientious objections to serve, not in the military forces, but rather in non-combatant roles. Without that limitation a conscientious objector could have been imprisoned. The suggested reason for their imprisonment would have been their failure to comply with the draft law, a law of universal operation. But if the reason they did not wish to comply with the draft was their conscientious objection, one may ask what the real cause of their imprisonment would be. It is not difficult, I think, to argue that in such a case the cause of the imprisonment would be the conscientious belief, which could be political opinion, not merely the failure to comply with a law of general application.
[23] In Applicant M v Minister for Immigration and Multicultural Affairs [2001] FCA 1412, Carr J held that it was necessary to consider not only whether a person refusing to undergo military service in Afghanistan under the Taliban Government might be persecuted by reason of political opinion, but also the possibility that there was a particular social group of such persons. At [31]-[34], his Honour said:
Even if there exists a conscription law of general application in the country from which a claimant refugee has fled, conscientious objectors, or a class of conscientious objectors defined by reference to a particular belief or opinion, may be, for the purposes of the Convention, a particular social group - see Lehane J in Mehenni v Minister for Immigration and Multicultural Affairs and the authorities there cited. As his Honour pointed out, it would be necessary for an applicant for a protection visa to show that he or she had a well-founded fear of persecution for reason of membership of that group.
...
In the present matter, as I have mentioned, there was no evidence of a law of general application on the matter of conscription. All the evidence points to forcible conscription by the Taliban without any lawful justification. In my opinion, when the Tribunal relied on Branson J's decision in Mijoljevic v Minister for Immigration and Multicultural Affairs [1999] FCA 834, which was a case of enforcement of laws of general application providing for compulsory military service, it fell into error.
In my view, the Tribunal was obliged to consider whether the applicant had a well-founded fear of persecution by reason of his membership of a particular social group comprising those persons who held a conscientious objection to military service. In failing to do so I consider the Tribunal erred in law to the extent that it fell into jurisdictional error.
24 The issue of military service was also considered by the High Court in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. The Court found at [97] that:
Nevertheless, it must be recalled that the Tribunal did not base its conclusion affirming the decision to refuse Mr Israelian a protection visa only on its finding about conscientious objection. It concluded that there would not be persecution of Mr Israelian if he returned to his country of nationality, only the possible application of a law of general application. The Tribunal is not shown to have made an error of law in that respect. Moreover, the evidence to which counsel for Mr Israelian pointed as suggesting that the sanctions imposed on Mr Israelian would go beyond the application of the general law related to deserters, not draft evaders. It was not demonstrated that those groups formed part of a single "social group" within the meaning of the Convention definition. …
25 As the cases referred to above demonstrate, the consideration of whether a refusal to do military service gives rise to protection obligations requires a two step inquiry:
1. what is the applicant's reason for his or her refusal to do military service (ie, is the applicant a "conscientious objector" or a member of some other group holding beliefs against compulsory military service)?; and
2. what are the consequences for a failure or refusal to complete military service (ie, can the applicant demonstrate a well-founded fear of persecution by reason of his or her membership of that group)?
26 The Reviewer's consideration of those matters was contained in the following two sentences:
… [the second appellant] did not claim to be a conscientious objector and I do not find him to be such. As military service in Iran is a law of general application, I do not accept that [the second appellant's] desire to avoid it as a Convention claim for protection, nor would it be discriminately applied against him for a Convention reason, such as to punish him because of his father's political beliefs, which I have already objected.
27 In relation to the first limb (see [25(1)] above), it is unfortunate that the Reviewer expressed her consideration of the second appellant's reason for his refusal to do military service as that he "did not claim to be a conscientious objector". That phrase suggests the Reviewer was influenced by the form, rather than the substance, of the second appellant's objection to military service. It is difficult to discern how the Reviewer has, as the Federal Magistrate states, "made a factual finding … that the [second appellant] was not a conscientious objector and that his refusal to undergo military service did not constitute a conscientious objection". Whether the second appellant claimed to be a "conscientious objector" or otherwise is irrelevant. The question is whether the second appellant's reason for refusing to do military service means that he is a member of a class of objectors to military service defined by reference to a particular belief or opinion, who are, for the purpose of the Refugee Convention, a particular social group. Despite the brevity of her analysis, however, I am satisfied that the Reviewer in fact considered the second appellant's stated reason, that he did not believe in the government of Iran, and concluded that was not a reason which meant that he was a member of such a group for the purpose of the Refugee Convention.
28 In relation to the second limb, the Reviewer's analysis was again, regrettably brief. The Reviewer's view of the law of Iran governing military service was that it was "of general application". There was no particular consequence reserved for people holding the belief that the second appellant held other than that he would have to complete military service. Again, I am satisfied that, by reaching the conclusion that the law was "of general application", the Reviewer did in fact consider the second appellant's claim and conclude that he had not demonstrated a well-founded fear of persecution by reason of the belief that he held. Finally, the Reviewer went on to reject the contention that the second appellant's desire to avoid military service would be "discriminatorily applied against him for a Convention reason" because of his father's political beliefs, which the Reviewer had rejected: see [17] above.