Case: Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473
Outcome: referred to
the making of a claim, either articulated or implied, that the appellant feared persecution for a Convention reason if she were to conscientiously object to further undertaking compulsory military service in Israel, the "behaviour modification" considerations addressed for example in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473 do not relevantly arise. The second contention is that the appellant's material exposed an unarticulated claim to fear persecution, in effect for a political opinion, by being a conscientious objector to undertaking compulsory military service if she were to return to Israel. She had, on the material, previously undertaken a period of compulsory military service between 2000 and 2002. It was also clearly accepted by the Tribunal that she would have to undertake a further 30 days' military service each year until the age of 35. She said in her application for the protection visa that, if called up, "it will be more risky for me if I'll (sic) have to take that call in this situation". In the same document, she said: I think all the people that [are] responsible to (sic, for) this situation in Israel if it's the Hizballa (sic), or the Israely (sic) government that just can't get to an agreement to stop the terrorism for long long years. In her written statement to the Tribunal, the appellant wrote: I'm not saying that I agree with the Israeli government and the actions that they take as a responds (sic) to the bombing, I find the suffer[ing] of the other side really horrible, but I'm just against this hole (sic) situation, I feel sad for both sides with the lost that they're suffering, I believe no one should die in this long war that just doesn't stop since I remember myself, since I was a little girl I remember bombing and killing in behalf of (sic) this war ... and a little later she added: ... if I'll (sic) go back to Israel, as I wrote in my request all Israelis (sic) girls that serve the army in a job similar to mine have to serve again every year for 30 days, and if I'll (sic) go back while the security situation is so unknown and might get worse in short time the army will defiantly (sic, definitely) call me to serve my time and this might make my chances to die bigger. Her oral evidence to the Tribunal included the following: Tell me: why do you think you're a refugee? Tell me slowly. Okay. Israel as we all know, it's a really hard place to live. Like, apparently all of our neighbours just want to get all the Israelis out of Israel and have the country for themselves. So some people living in Israel just choose to live with this situation, just look at it as an ordinary thing, like you wake up in the morning, maybe one of the buses right next to you will blow up and people will be dying and life goes on. I don't think I don't see it that way, just ... and I just couldn't go back to the mess in Israel. That's the only thing. I just think that what's going on is wrong what's going on in our side and also in their side, what our army doing to them it's also wrong. I just can't live with it being and this is why I think I just I need you to let me stay here. And in relation to further army service, she said: And if I won't go, so they just come and take me and put me in gaol or something like that. Yes, I understand how it works. This applies to all Israeli citizens? Yes. ... Well, I can live my life as I did before I came here, and just in fear that the next place that I'm going to be is going to blow up by a terrorist or something. And also the army it's also arrest you to go back there and something can happen. You're just frightened to go back there. After that passage, the Tribunal asked her who was persecuting her. It pointed to the Convention reasons: race, religion, nationality "and so on", and it suggested that she did not fit neatly into the category of persons persecuted by their own government. She responded by saying the government could not protect her from Palestinian or other terrorist acts.