28 In Mehenni, there is an extensive quote from the UNHCR Handbook, including that passage referred to in the Amnesty International Letter. Lehane J, at 199 - 200 (pars 19 - 22), put that passage into context. His Honour emphasised the need for the well founded fear of being persecuted being for reasons of race, religion, nationality, membership of a particular social group or political opinion before a person can satisfy the respondent (or on review the Tribunal) that that person is a refugee. In Timic Einfeld J specifically addressed the position of what his Honour called "conscripts/reservists" consistent with those earlier decisions.
29 In my judgment, the applicant has not shown that the Tribunal was in error in finding that the applicant's fear of being involved in further military service (the consequences of which at present I assume would be of sufficient gravity to constitute persecution) is not fear of persecution for a Convention reason or for the purposes of the Convention. The applicant's fear must be tied to one of the Convention reasons. It was open to the Tribunal in the present matter not to be satisfied of that connection. That is not to say that a conscientious objector may not, in appropriate circumstances, be a refugee for the purposes of the Convention. But the Tribunal has made findings in relation to this applicant in his particular circumstances and on the material before it which are not shown to involve any error of law. In reaching that decision, the Tribunal did not reject the applicant's claim as to the nature of his fears which he also described vividly in the course of his submissions upon this application.
30 The Tribunal also addressed, as I have noted, the question of what would happen to the applicant if he were to return to Macedonia. It found that he would still be vulnerable to being called up as a reservist from time to time but it was satisfied that the mere fact of him being required to do so would not itself amount to persecution and that, when he did report for reserve duties, he would not be required to engage in the sort of activities of which he has an obvious and deep felt fear. It found that he would be referred for medical opinion and either be excused from further reservist duties or be given substituted civilian duties. It was satisfied that those outcomes did not involve persecution in the sense in which that expression is used in the Convention. For that reason also it rejected the applicant's claim. I am not satisfied that it erred in law in its approach to his claim.
31 I have referred earlier in these reasons to s 476(1)(g) and s 476(4) of the Act. There is no matter identified by the applicant which constitutes a "jurisdictional fact" so as to enliven s 476(4)(a) of the Act: see Curragh at 220 - 221. Those matters of which he complains are matters which might fall within s 476(1)(b) of the Act. I approach them in that light. He referred to a number of pieces of information which, he submitted, had not been considered by the Tribunal or in respect of which in some way the Tribunal had erred by making a finding about a fact which did not exist, or which involved findings based upon references to evidence or documents which he said did not support those findings.
32 One aspect concerned two letters from the Macedonian Community Cultural Centre dated 7 November 1999 and from the Macedonian Orthodox Community Church, St Petka, Inc. dated 5 November 1999, each addressed "To whom it may concern". He submitted that those two letters had been provided to the Tribunal, and had not been considered by it. The respondent did not acknowledge that those letters had been presented to the Tribunal at all, and contended that I should not receive them on this application unless I was satisfied that they had been before the Tribunal. They clearly do not fall into the category of new evidence otherwise admissible upon this application. I have decided that I should receive those two letters in evidence. I formally do so. The first reason is because, it seems to me, it may be necessary in fairness to the applicant to determine by evidence whether they were before the Tribunal at all. It may be possible to embark upon that process by reference to their content. In the event, I do not need to further pursue that question. I have considered their content in relation to this application. Even if they were before the Tribunal, and I am now prepared to assume in the applicant's favour that that was the case, I do not think that the fact that the Tribunal did not refer to them gives rise to the ground of review under s 476(1)(g). In my judgment, neither constitutes or contains evidence of particular facts within the meaning of s 476(4)(b) upon which the decision was based. Nor does either make out the additional requirement to enliven s 476(1)(g), namely that the particular fact did not exist. The letter from the Macedonian Orthodox Community Church, St Petka Incorporated, is really no more than a reference from the very Reverend Father Nowan Despotoski as to the character of the applicant and his family. It is not direct evidence going to a matter upon which the Tribunal based its decision. The letter from the Macedonian Community Cultural Centre is in part a reference and in part a hearsay report of material from the applicant (much of which the Tribunal has accepted in any event) and in part is in the nature of a submission on behalf of the applicant to the Tribunal, similar to the submission which was put in the course of the Tribunal's hearing. There is one additional aspect of that letter to which I will refer later in these reasons, but it does not otherwise demonstrate that the Tribunal based its decision on the existence of any particular fact which did not exist.
33 I make similar comments about the other documents or findings of the Tribunal to which I have not yet referred. The applicant complained that the Tribunal had not referred to evidence of a further medical appointment arranged with Dr Kusminovski, and said that it was incorrect that he had seen Dr Kusminovski on a single occasion only. Whether he had seen Dr Kusminovski once or more than once is not a particular fact upon which the decision was based. The Tribunal, in fact, accepted the nature of the applicant's illness and its relationship to his initial military service. He also referred to two letters from the Ministry of Defence of Macedonia issued on 15 October 1997 and 3 November 1999. I have already referred to one of them. The other is a request for completion of military service. The Tribunal referred to that document in its reasons. It is not shown to have misapprehended the contents of that document. The way in which it considered those two documents does not demonstrate that it has based its decision on the existence of a particular fact or facts which did not exist. I note also that the applicant submitted that the Tribunal understood that he had tried to desert from the Yugoslav army rather than that he had in fact deserted from the Yugoslav army. However that submission was based upon part of the written submissions of the respondent on this application. In fact, the Tribunal did find that the applicant deserted the Yugoslav army in 1991. Accordingly, that matter is not a matter which is a fact which did not exist.
34 The applicant further contended that the Tribunal had erred in treating the position in Macedonia as being calm and ordered, whereas the applicant in his submissions contended that it was far from paradise. However, the Tribunal made a finding on the state of affairs in Macedonia. It identified the material upon which it based that finding. It cannot be shown that its finding is based upon a fact which did not exist.
35 The applicant also submitted that the Tribunal erred in basing its decision upon the way in which he would be treated if he were to return to Macedonia. He said that training exercises necessarily involve the use of guns, and that if he refused to use guns in training exercises he would be treated as a traitor in his country and be prosecuted. The difficulty with that submission is that it is contrary to the Tribunal's findings as to how the Macedonian Army would react when and if he were required to further attend reserve duties. I have referred to those findings already. The Tribunal identified the reasons for its finding, in particular the way in which the applicant had been treated when previously he had been required to attend for military training in 1997 and in 1994 and in the light of the absence of any adverse steps taken in relation to him in 1999 or on those earlier occasions. Although the applicant's submission may have given rise to an argument available if this were an application to review the decision of the Tribunal on the merits, it does not give rise to the ground of review under s 476(1)(g). I am not satisfied that the particular facts as found by the Tribunal were facts which did not exist in that regard.
36 The result in my judgment is that this application must be dismissed. In the course of his reply to submissions on behalf of the respondent, the applicant did however make an additional submission that he would be persecuted if he were returned to Macedonia and would be subject to criminal charges for two reasons. Firstly, because he had not attended a call up notice, even though he received yet a more recent one after the Tribunal had delivered its reasons, and secondly because he had departed Macedonia without returning to the authorities his military booklet, a course apparently required under the defence law of Macedonia. That latter matter was something he developed by reference to part of the letter from the Macedonian Community Cultural Centre of 7 November 1999 which purported to contain translated extracts from the military booklet as well as a copy of a page of that booklet. To the extent to which those claims were available and not pursued before the Tribunal, it is not now appropriate for the Court to entertain them. To the extent to which they give rise to new claims arising after the Tribunals decision, subject to the Ministers consideration under s 48A of the Act, they may give rise to new information in support of a further application for a protection visa. I do not intend to convey that they have that quality or character. I simply do not know. I did not receive evidence in any detail on those matters. I point them out because it is plain that they are not matters which the Court on this application can entertain.
37 It is easy to understand the applicant's strong desire to remain in Australia with his family, given the experiences which he has endured and his reaction to them, all of which the Tribunal has accepted. The Tribunal expressed the view that his fears may be irrational. They may well deserve that description, but it found they are nevertheless real. However, having regard to the matters argued on this appeal and the way in which the Tribunal approached the applicant's claim, in my judgment this application must be dismissed. I so order.
38 Mr Jordan tells me that the making of an order for costs will not inhibit the applicant from pursuing such other legal rights as he may have under the Act. In those circumstances, it seems to me appropriate to make the usual order for costs. I order that the applicant pay the respondent costs of the application to be taxed.