Applicant S33 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs
[2003] FCA 1131
•17 OCTOBER 2003
FEDERAL COURT OF AUSTRALIA
Applicant S33 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1131
MIGRATION – Whether Tribunal failed to deal with claim – onus on applicant to provide material in support of claim
Judiciary Act 1903 (Cth), ss 39B & 44
Federal Court Rules (Cth), O51A r5
Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [187] (per Gummow and Hayne JJ) referred to
Applicant M216/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 931 referred to
Applicant S321 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 938 referred to
Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1 referred to
Minister for Immigration and Multicultural Affairs v Khawar (2002) 187 ALR 574 referred to
Minister for Immigration and Multicultural Affairs v Prathapan (1998) 156 ALR 672 referred to
Muin v Refugee Review Tribunal (2002) 190 ALJR 966 referred to
Thiyagarajah v Minister for Immigration and Multicultural Affairs (1997) 73 FCR 176 at 179 referred toAPPLICANT S33 OF 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS, SECRETARY, DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS, PRINCIPAL MEMBER REFUGEE REVIEW TRIBUNAL AND RUTH CHEETHAM MEMBER REFUGEE REVIEW TRIBUNAL
N369 of 2003
JACOBSON J
SYDNEY
17 OCTOBER 2003
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N369 of 2003
BETWEEN:
APPLICANT S33 of 2003
APPLICANTAND:
MINISTER FOR IMMIGRATION AND
MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENTSECRETARY,
DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
SECOND RESPONDENTPRINCIPAL MEMBER,
REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENTRUTH CHEETHAM,
MEMBER,
REFUGEE REVIEW TRIBUNAL
FOURTH RESPONDENTJUDGE:
JACOBSON J
DATE OF ORDER:
17 OCTOBER 2003
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.Application for orders nisi contained in the draft order filed on 15 January 2003 refused.
2.Extend time for the filing of any application for leave to appeal to a date 21 days from today.
3.Applicant to pay the Respondents’ costs of the proceedings.
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
N369 of 2003
BETWEEN:
APPLICANT S33 of 2003
APPLICANTAND:
MINISTER FOR IMMIGRATION AND
MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENTSECRETARY,
DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
SECOND RESPONDENTPRINCIPAL MEMBER,
REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENTRUTH CHEETHAM,
MEMBER,
REFUGEE REVIEW TRIBUNAL
FOURTH RESPONDENT
JUDGE:
JACOBSON J
DATE:
17 OCTOBER 2003
PLACE:
SYDNEY
REASONS FOR JUDGMENT
Introduction
This is an application for constitutional writs seeking to quash a decision of the Refugee Review Tribunal (“the RRT”) dated 28 May 2002. The proceedings were remitted to the Federal Court by an Order of Gaudron J made on 6 February 2003.
The proceedings were commenced in the High Court on 15 January 2003. A draft order nisi was filed at that time calling upon the relevant respondents to show cause why an injunction, a writ of mandamus or a writ of certiorari should not be issued.
The Applicant sought to reconstitute the proceedings in this Court by filing an amended application naming only the Minister (who was not a party in the High Court) as the respondent. The application purported to be an application for review of the decision of the RRT under s 39B of the Judiciary Act 1903 (Cth).
A number of procedural issues arose from this which I will deal with briefly below. However the question of who are the parties and the question of whether the application was made under s 39B have been resolved by a further amended application filed on 16 October 2003. The further amended application names all four parties set out above and makes no reference to s 39B. It is entitled under s 44.
However, the question of whether the matter is to be considered as an application for constitutional writs or an application under s 39B has no bearing on the issue of substance which is raised for consideration.
The essential issue is whether the RRT dealt with a claim made by the Applicant that he had a well-founded fear of persecution on religious grounds.
The Applicant made claims of persecution on both political and religious grounds but the latter claim was made only at, or very shortly before, the oral hearing.
The RRT dealt with a claim of religious persecution but the claim which it disposed of was that the Ukrainian government was indirectly involved, (i.e. complicit in), acts of persecution by non-state parties.
The Applicant contends that he made a claim of direct state involvement through the medium of the Ukrainian police not only in political persecution but also in religious persecution.
In order to determine the issue, it is necessary to examine in some detail the claims which the Applicant put forward. A transcript of the oral hearing in the RRT was in evidence before me. So too were written submissions and representations made by the Applicant’s solicitors to the RRT.
Background
The Applicant is a citizen of the Ukraine. He arrived in Australia on 8 September 1996. Nearly twelve months later, on 2 September 1997 he lodged an application for a protection visa. That application did not make a claim of persecution on religious grounds. The Applicant’s protection visa decision record reveals that his application was confined to a fear of persecution on political grounds.
On 4 December 1997 a delegate of the Minister refused to grant a protection visa and on 8 January 1998, the Applicant applied to the RRT for review.
An oral hearing in the RRT was held two years later on 2 February 2000. Shortly before the hearing, in a letter from his solicitors dated 31 January 2000, the Applicant raised for the first time, a claim that he feared persecution on religious grounds. The claim of persecution on political grounds was not abandoned in the letter which put forward a number of claims dating back to the period before Perestroika and the break up of the Soviet Union.
The letter did not make clear what factual matters the Applicant relied upon in support of the religious claim. Nor is it clear that the RRT received the letter before the hearing. Nevertheless, a claim of religious persecution was made at the oral hearing on 2 February 2000.
At the hearing the RRT endeavoured to find out precisely what facts the Applicant wished to put forward to support this ground.
In [53] of its decision the RRT summarised the claim which it said was made. This was that, as an adherent of one branch of the Ukrainian Orthodox Church, the Applicant had been assaulted on a number of occasions between 1995 and 1996 by or on behalf of supporters of the Greek Catholic Church.
The RRT dismissed this claim at [54] of its decision as follows:-
“However, I do not accept that these assaults constituted persecution. The events described by the applicant lack the ‘official quality’ described in the cases … and I am not satisfied that it can fairly be said that the Ukrainian government was complicit in, or failed or is unable to protect the applicant from, this harm.”
The RRT gave reasons for the findings which I will record in more detail later.
Mr Killalea who appeared for the Applicant, submitted that the RRT did not deal with the claim of direct involvement by the Ukrainian police in religious persecution. Mr Killalea stated that no issue was taken about the RRT’s finding that the Applicant did not have a fear of persecution on political grounds.
The letter of 31 January 2000
The letter stated that the Applicant feared returning to the Ukraine because he had been denied freedom of religious expression as an activist in the Ukrainian Orthodox Church.
The letter went on to make claims of persecution on other grounds including political persecution. It concluded as follows:-
“[The Applicant] was assaulted on 6 occasions by various individuals, all of which have increased his fears of returning to the Ukraine. The occasions are as follows:
1.In 1995, after attending the US Embassy, [the Applicant] was kicked in his chest and stomach by 2 assailants who seemed to be police, because they showed him red identity books which the police commonly held.
2. In 1996 a Vladimir Schwetz and an unknown assistant hit him in the temple and gassed him. Schwetz told him he must become an Ukrainian Greek Catholic.
3.The next day [the Applicant] was attacked by 2 assailants who gassed him and kicked him in the stomach.
4.Later [the Applicant] was attacked by a Mekola Chwetz, also a Ukrainian Catholic with an assistant who [the Applicant] identified as a vigilante from UNSO (a Ukrainian private semi fascist military organization). This person also gassed and kicked [the Applicant].
5.In 1996 [the Applicant] was attacked by 2 plain-clothes police and 1 in uniform, who had followed him in a car.
6.[The Applicant] had also been once taken to a police cell in Lvov, where 2 plain-clothes policemen told him that there was a complaint against him by a woman. The next time [the Applicant] saw a man being beaten and spoke to the police about this. [The Applicant] was subsequently hit in the kidneys because of this.”
The Hearing before the RRT
In addition to his own evidence, the Applicant called two witnesses to support his claim of religious persecution.
The first was the Archbishop of the Russian Orthodox Church in Australia, Archbishop Hilarion. He gave evidence of the history of the Orthodox Church dating back to the Stalinist period of the Soviet Union.
The Archbishop’s evidence was that in the 1940s the Greek Catholic branch of the Church was forced into a union with the Russian Orthodox Church. After Perestroika and Ukrainian independence people were free to become Greek Catholics but there were internecine conflicts before the various branches of the Church.
In the course of his evidence the following exchange took place between the presiding member and the Archbishop:-
MS CHEATHAM: “Your Grace, what role, if any, did the Ukrainian authorities take in this internecine struggle, if I can put it in those terms?
ARCHBISHOP: …From – from the point of view, from what I’ve read in – in letters from people at that time that wrote here they – the Orthodox felt that the government in the area of …. Was - favoured the Greek Catholics, because the majority of people were of that faith. That’s how the Orthodox felt. There was somewhat of a favouritism towards Greek Catholics and this is also how the Russian Orthodox church, the Moscow Patriarchate interpreted it.
MS CHEATHAM: I’m sorry, your Grace, do you mean that the Russian Orthodox church was perceived as a favourite of the authorities or perceived the authorities to be favourite – favouring the ---
ARCHBISHOP: The Russian Orthodox church felt that the government favoured the Greek Catholics, yes.”
The second witness was a Mr Kyseaov who is a journalist with SBS and a community worker for the Russian Ethnic Community Council. He gave evidence of his knowledge of Ukrainian history.
Mr Kyseaov’s evidence was that after the Ukrainian government proclaimed freedom of religion the members of the Greek Catholic or Greek Orthodox Church sought to take revenge against the Russian Orthodox Church for the forced conversions which had taken place under Stalin.
His evidence included the following:-
“To my opinion there is no government involvement in this process but Ukrainian government is very weak and poor to protect these people.
I studied how Ukrainian police does work. The police is completely corrupt. I read a lot of cases about Ukraine police corruption. The government doesn’t have enough funds to subsidise their … protective and … with a concession. In such cases, such situations the problems that happened to [the Applicant], ordinary member of church doesn’t have any relation with the people from top in the church, the church hierarchy. No one would pay attention to protect him in a case if something would happen to him. He is an ordinary person. He is truly believer, very faithful man, as I understand to my opinion of course. I believe that that’s true from my observation because I know him from 1997 and as – I believe that he was very active in – I mean active from religious point of view trying to support an Orthodox church in this region where he used to live. Such activity drew attention from Greek Catholic activists and … para military organisation in Ukraine like Ukrainian Nationalist … Ukrainian”
Mr Kyseaov’s reference to the para military organisation was apparently to the UNSO which is an acronym based upon the English translation of the initials of a group called the Ukrainian Self-Defence Organisation.
After the Applicant had given evidence of events which he relied upon on the political ground, including evidence of assaults by the Ukrainian police, the presiding member asked him to give an account of his claimed fear of persecution on religious grounds.
The Applicant’s first answer did not deal with his religious claim. He did make a claim of police harassment but it is plain that this was in the context of a claimed fear of persecution on political grounds. This is because the Applicant said that the police attacked him after he had called at the US Embassy.
The relevant part of the transcript is as follows:-
INTERPRETER: “These people they were trying to put me again into that hospital. After – after I called the US Embassy, because I wanted to migrate to the USA – after I got back after – after my second visit to the US Embassy when I got back to Ukraine and one evening when I was returning from work I was met by two people in the street. When I asked them what do you want I got beaten up.
MS CHEATHAM: And who were those two people?
INTERPRETER: They said that they were from the police.
MS CHEATHAM: And why were they beating you up?
INTERPRETER: They – they said we are from the – from the police and I asked them what do you want and I was beaten up and told to shut up.”
The presiding member then asked the Applicant whether the police gave him any idea why he was beaten. He replied:-
INTERPRETER: “No, I simply was beaten up and told to shut up. Later on I was beaten up after the church service which was carried out in Greek Catholic – Catholic church.”
It is quite clear that the last sentence of this answer deals with a separate incident from the assault which took place after the visit to the U.S. Embassy.
The presiding member then asked the Applicant where this incident took place. The following exchange then occurred:-
INTERPRETER: “No, that was in the village. Then one day somebody rather well built called on me at my residence and he – he delivered a blow on my face and when I – and I was told that I have to be a – a good Greek Catholic just like everybody else. After I thought they had left and I returned home and went to work and after I crossed the street I noticed there were two people running from my home towards me. One was taller than I am. They – they weren’t saying anything to me. I – I was about to cross the street. The taller one caught up with me, put his hand above my head and began to spray me with some sort of a gas. Also he delivered quite a few blows with his feet to my abdomen. There was no way I could defend myself because that gas really got into my eyes and I could – I could hardly see and I had difficulties in breathing. So I just took off trying to run away and he ran after me and it was a little bit easier to run away downhill towards the park and then I ran into the park and – and as I ran uphill towards the cinema my nose start – I started bleeding from the nose.
MS CHEATHAM: Who was this man?
INTERPRETER: I don’t know the man.”
There was then some further evidence about where the incident took place. The evidence continued as follows:-
INTERPRETER: “Later on – later on a man by the name of … came from – who was from the same village as I he came to see me in … and pulled me out into the street and the man that was with him told me that – talked to me `You’ve got to be a Greek Catholic.’ I asked him `Who are you?’ He said that `I am from UNSO.’
MS CHEATHAM: I’m from?
INTERPRETER: UNSO, that’s the acronym.
MS CHEATHAM: Okay, yes.
INTERPRETER: Why I’m saying this because he had a jacket and under the jacket, which was open, on his shirt there was an imprint UNSO. And when I replied that I would never change my religion I was beaten up – well, he started kicking me with his feet.
MS CHEATHAM: When was this, what year did this happen?
INTERPRETER: That was in 96 before I left”.
The presiding member then put to the Applicant that the Ukrainian Constitution guarantees freedom of religion, that the government respects that right and that she had no evidence that the government discriminates against persons in the Greek Catholic or Ukrainian Orthodox churches. She asked whether the Applicant had any experience where the government discriminated against him on the ground of his religious belief. The Applicant said he had.
The following exchange then occurred:-
INTERPRETER: “The way I see it is that the government was discriminating against my religion, against my faith. In other words, the right of religious concession has been infringed upon by the actual government of Ukraine.
MS CHEATHAM: How has the government infringed upon the right of religious concession?
INTERPRETER: For example, there was contest in the court of law against the Greek Catholics. The Greek Catholics they kill people and also take over the church buildings using force, especially on myself. I used to go to … church. In 1990 when I went to the evening service I was met at the church by people who carried axes behind their belt and also metal sticks. I couldn’t get over it. After all all I wanted to do is go to the – to the church and to pray and I – but anyway I was asked who are you. I said that I’m going to do some praying. They said are you Orthodox? I said yes, I am, and finished up getting badly beaten up.”
It should be noted that in this passage the Applicant does not say that the police beat him. His evidence was only that he was beaten by “people”.
The presiding member then put to the Applicant that her information was that the government does not condone violence between the churches and is trying to prevent it.
The Applicant said he had a personal example to the contrary. However, the example which he gave was in vague terms. He said that the Catholics took over “our church” by force and that they got in touch with a para military organisation. He also gave evidence that when the Catholics took over the Church “the government said that we are not mixing into your differences of opinion.”
The presiding member put to the Applicant that the major para military organisations have been banned by the government. She also put to him that although the police are poorly resourced, and “in some instances corrupt”, they were not reported to be in collusion with religious extremists.
The Applicant replied that in his opinion the police were in collusion with the extremists and with fascists and communists.
Towards the end of the hearing, the Applicant’s solicitor asked whether the presiding member had any concerns about the Applicant’s credibility as a result of his delay in lodging his application for a protection visa (i.e. from 8 September 1996 to 2 September 1997).
The presiding member said that she had not drawn adverse conclusions about credibility because of that delay. She asked whether there was any part of the Applicant’s instructions which had not been covered in evidence.
The Applicant’s solicitor replied that he had a three page letter in draft form which covered ‘six separate attacks” between 1995 and 1996 of which the Applicant had not given evidence to the RRT.
The presiding member replied that the reason the Applicant was not able to give the evidence was that she did not have anything prior to the hearing which suggested what the claims would be.
The presiding member stated that at that stage the hearing had already occupied five hours. She said that she would give the solicitor seven days to provide a letter that outlined the incidents which the Applicant relied on.
Importantly, the presiding member stated that her “fundamental concern” was whether there had been a failure of state protection or an element of state complicity in any of the incidents put forward by the Applicant.
There was discussion between the Applicant’s solicitor and the presiding member in which the solicitor referred to his difficulties in getting instructions and to the fact that the Applicant is “not as articulate as perhaps a lot of people are, even in his own language.”
At the end of the discussion, the presiding member said:-
“And if there is anything in that written submission that I need to discuss with you then I will reschedule another hearing. I urge you – I urge you very strongly, speak with your lawyer tomorrow or the next day and tell him what you think I need to hear.”
The Applicant then said he wanted to make a statement. He said that he wanted to talk about his fear. The presiding member said that she believed the Applicant was genuine and he then said:-
“The thing is why my friends who built the church with me are being killed, why this seer was killed, why was his wife killed, why were his children killed and why is it that as soon as I came to Australia the man that I was for a while hiding with was killed and so was his son. Why is it that during the religious procession in --- when I was carrying the actual banner the police beat me up half dead. Would you believe me if my head was chopped off and served to you on a platter?”
At the conclusion of the hearing the presiding member reiterated her remarks about the need for a comprehensive statement from the Applicant of his claims within seven days. She also repeated her earlier statement that the Applicant’s submissions should deal with the issue of state protection and state involvement in the claims of persecution.
The letter of 16 February 2000
By a letter of this date the Applicant’s solicitors provided further material to the RRT in support of the claim.
The letter stated that Archbishop Hilarion had given evidence at the hearing that:-
“Although there is freedom of religion in the Ukraine, the Government does not safeguard this and that, in fact, it is likely that [the Applicant’s] possible persecutors in the Ukraine would be either police themselves, or former police involved in the religious schisms described in detail to you by the Archbishop.”
In fact, Archbishop Hilarion gave no such evidence. Even if the statement which I have quoted at [55] was not intended to be attributed to the Archbishop, it could not amount to evidence of state involvement or state condonation of acts of persecution. At most it amounted to a theory put forward by the solicitors unsupported by any evidence.
The same comments apply to the following passage on the second page of the letter:-
“We are also instructed to stress to you that the assaults which [the Applicant] has suffered, are directly related to the Church, because each of them has been caused by either the police or the Church itself. It is therefore quite reasonable for [the Applicant] to assume that he is being persecuted because of the Church’s activities and that the State will not protect him in relation to that matter.”
On the third page of the letter the solicitors stated that the Applicant’s fears genuinely relate to problems in expressing his religious views; that he is a large man who would not easily be physically intimidated. The letter continued:-
“Yet he has been on at least six occasions and each of these, in our opinion, relates to the refugee grounds.”
The “six occasions” appears to be a reference to those set out in the six numbered paragraphs in the passage from the letter of 30 January 2000 quoted at [21].
I will deal with these six claims under the subheading “Whether the RRT failed to deal with the Applicant’s claims”; see in particular paras [106] to [114] below.
The letter of 16 February 2000 also stated that:-
“He [the Applicant] has had an association with Church members which has seen both himself and other members of his Church terrorised and even killed.”
This statement, quite apart from its vague and unspecific content, makes no reference to direct state involvement.
The letter attached a form of statement made by the Applicant under the heading “Answers to Questions posed by Justin Rickard”. The statement contains nineteen paragraphs.
Paragraph 1 of the statement is as follows:-
“My life is at risk in the Ukraine because of the civil authorities and religiously-affiliated persons, who persecuted me and made attempts on my life in the past. I have no guarantee that the same persons will not continue to persecute, harm me, try to place me in a mental institution or even kill me.”
This paragraph contains no allegation or evidence of direct state involvement.
Paragraph 2 of the statement states:-
“Before perestroika and the downfall of the communist regime, I was persecuted by the police for my confession of faith, because I was Ukrainian by nationality and because of my involvement with the anti-communist political movement.”
It is true that this paragraph contains an allegation of direct state persecution at the hands of the police by reason of the Applicant’s religious affiliation. It is the only paragraph in the statement to make such a claim.
However, it is expressly limited to the period before Perestroika, that is to say, before the establishment of the Ukrainian Republic. Accordingly, it was irrelevant to the Applicant’s claim for a protection visa.
Paragraph 4 refers to a number of beatings but contains no allegation of direct state involvement. There are references to beatings by Vladimir Schwetz and Mekola Chwetz. These appear to be the incidents referred to in paragraphs 2 and 4 of the letter of 31 January 2000. They contain no allegation or evidence of direct state involvement.
Paragraph 5 states that the Applicant’s nose was injured by members of the police force but it gives no other details . Moreover, it does not suggest any causal nexus with the Applicant’s religious beliefs.
Paragraph 7 contains a lengthy allegation of imprisonment and police assault. However, it states that the Applicant was being held because of a complaint made by a woman that her gloves were missing. There is no allegation in this paragraph of police involvement in religious persecution.
Paragraph 11 states:-
“I fear returning to Ukraine because I am afraid of being beaten again, persecuted, put in mental institutions, becoming a subject of medical experiments or even being killed. The same persons who in the past persecuted me and harmed me are still in power and positions of authority, even if now they may have changed their colours. There is absolutely no guarantee of safety for me since the government and police of Ukraine are weak, ineffective and frequently corrupt (in fact, instead of protecting, they assist in persecuting).”
This paragraph contains no allegation of Ukrainian police involvement in religious persecution. Nor, as I have said, is there any such claim elsewhere in the statement.
The letter of 8 December 2000
This was a letter from Archbishop Hilarion which was forwarded to the RRT under cover of a letter from the Applicant’s solicitors dated 22 December 2000.
It provided no evidence of religious persecution let alone of direct state involvement.
The letter of 22 December 2000 also attached a statement by the Applicant in which he gave details of a meeting which he attended in 1996. The statement alleges that following the meeting the Applicant was assaulted by four persons. However, the statement contains no allegation of police involvement.
The decision of the RRT
The RRT set out the details of the Applicant’s claims at [12] – [22] of its decision. The RRT recorded in these paragraphs the details of the Applicant’s political and religious claims. It referred at [14] to the written submissions dated 31 January 2000, 16 February 2000 and 8 December 2000. It also referred to a submission dated 16 February 2002 but this document was not in evidence before me.
At [19] the RRT stated that the Applicant claimed to have been assaulted six times in 1995 and 1996 in Ukraine and that each incident was because he was an active member of the Ukrainian Autocephalous Orthodox Church. Details of the assaults were then set out:-
“In 1996 the applicant was assaulted by two plain-clothes police and one uniformed police officer who had followed him in a car. It appears from later written submissions that one of the 1996 incidents followed the applicant’s participation in a demonstration by his church to recover a cathedral which has been claimed by another branch of the Orthodox Church, and an attempt to bury the deceased patriarch of his church in the same cathedral.”
In [20] of its decision, the RRT referred to the arrest on the complaint about the Applicant’s stolen glove.
Paragraph [21] of the decision is as follows:-
“In his written submissions, the applicant claims that each of the incidents of harassment and harm that he has suffered are related to his religious belief and his political opinions. In relation to the more recent incidents, the applicant claims that in Lvov and western Ukraine the civil authorities support the Ukrainian Greek Catholic Church in opposition to the Orthodox Church, and that the persons who harmed him did so at the behest or direction of the Greek Catholic Church because he was an active member of the Orthodox branch to which he belonged (the Autocephalous Orthodox Church), which is the smallest of the three Orthodox churches in Ukraine and smaller that the Greek Catholic Church in Ukraine. The applicant claims that he cannot access effective protection by the authorities from this harassment because the authorities support the Greek Catholic Church.”
The RRT referred to the evidence at the hearing at [23] – [34].
At paragraph [27] of its decision, the RRT said that the Applicant claimed that the people who assaulted him in 1995 and 1996 were members of the UNSO. The RRT recorded the Applicant’s claim that “the police and government do not protect Orthodox believers from such harassment.”
At paragraph [30] of its decision, the RRT referred to the evidence of Archbishop Hilarion. It referred to his evidence that the Orthodox branches were of the view that the government favoured the Greek Catholic Church. It recorded his evidence that he had no impression of any negative treatment by the government of Orthodox believers and his evidence of internecine struggles between the three branches of the Orthodox Church and the Greek Catholic Church.
The RRT referred at paragraphs [31] to [33] to the evidence of Mr Kyseaov. It recorded his evidence that the Ukrainian government played no role in religious clashes but that it was weak and unable to provide protection.
At paragraph [34] of its decision the RRT said:-
“The hearing was very lengthy, partly due to the applicant’s failure properly to identify and state the substance of his claims prior to the hearing and partly because the applicant was frequently incoherent in giving his evidence. At the conclusion of the hearing I undertook to consider whether a further hearing would be necessary after I had had an opportunity to research the claims made by the applicant relating to religious persecution, which had not been raised before. After such consideration I considered that a further hearing was not necessary.”
The RRT referred to independent country information about religious freedom in the Ukraine at paragraphs [35] – [41] of its decision. It is unnecessary to refer to this.
The RRT set out the relevant legal principles at paragraphs [45] to [50]. There was no dispute before me about the summary of the principles as stated by the RRT.
The RRT stated that persecution must have an “official quality” in the sense that it is officially tolerated or is uncontrollable by the authorities of the country of nationality. The threat of harm need not be the product of government policy. The RRT stated that it may be enough that the government has failed or is unable to protect the Applicant from persecution. Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1 and Minister for Immigration and Multicultural Affairs v Khawar (2002) 187 ALR 574 support these propositions.
The RRT stated that the protection available to an Applicant in his or her own country must be effective but a guarantee of protection is not required. The authorities to which the RRT referred, namely Thiyagarajah v Minister for Immigration and Multicultural Affairs (1997) 73 FCR 176 at 179 and Minister for Immigration and Multicultural Affairs v Prathapan (1998) 156 ALR 672 at 680-681 support this.
The RRT also referred to the statement in Hathaway, The Law of Refugee Status, Butterworths, Canada, 1991 at 124, that an entitlement to protection arises where the degree of protection normally to be expected from the government is lacking or denied.
Notwithstanding the presiding member’s statements at the oral hearing that she believed the Applicant’s claims to be genuine, she expressed doubts about them at [51] of the decision.
However, at [52] of the RRT’s decision, the presiding member said she did not find it necessary to make findings as to whether the claims were true. She said she proceeded on the basis that even if the claims were true, the Applicant does not have a well-founded fear of persecution for a Convention reason.
The RRT’s findings about religious persecution are set out at [53] – [61].
I referred at [16] above to the RRT’s summary of the claims. I have already set out at
[17] about the RRT’s finding that the assaults did not constitute persecution because they lacked the necessary official quality and the Ukrainian government was not complicit in, nor did it fail nor was it unable to protect the Applicant.
At [55] of its decision, the RRT said there was no evidence to suggest that the Ukrainian government played any role in the internecine disputes between the various branches of the Church. Indeed, this was supported by the evidence given by the Applicant’s witness, Mr Kyseaov.
At [56] of its decision, the RRT said it did not accept that any government favouritism of the Greek Catholic Church, to which the Archbishop referred, amounted to persecution. Nor did it accept that this tendency was condoned by, or beyond the control of, the government. These findings were open to the RRT on the evidence and the independent country information.
At [57] of its decision the RRT did not accept, on the basis of independent country information, that members of UNSO act with the express or implied approval of the Ukranian government. This finding was open to the RRT.
Nor did the RRT accept that the Ukrainian government was unable or unwilling to protect the Applicant from harm from the UNSO. This finding was also open. So too was the finding at [57] that the government did not condone the actions of the UNSO.
The RRT said at [58] that it was not satisfied that the level of state protection available to the Applicant was ineffectual. Again, this finding was open.
Further, the RRT said at [59] that the Applicant did not give evidence that he had sought protection from the government against the harm he feared from Christians or members of the UNSO.
The RRT concluded at [60] as follows:-
“I am satisfied that the applicant does not have a well-founded fear of persecution by reason of his religion if he were to return to Ukraine because the harm he fears is not persecution, in that it is not encouraged or condoned by the government nor is the government powerless to prevent it, and because he can access effective protection against such harm.”
At [62] – [68] the RRT dismissed the Applicant’s claims that he feared persecution on political grounds. As I have said, no issue is raised about this in the present proceedings.
Whether the RRT dealt with the Applicant’s claims of religious persecution
It is plain that the RRT dealt with claims made by the Applicant that he had been assaulted by followers of the Greek Catholic Church or by members of the UNSO. The RRT summarised these claims at [53] and dismissed them in the paragraphs which followed upon the basis that they did not constitute persecution within established legal principles.
However, the Applicant submits that the RRT did not address his claims of mistreatment by the police on the ground of his religious affiliation.
I have set out in some detail the evidence provided by the Applicant to support his claim for protection because in my view it shows that he did not make a claim of mistreatment by the police for his religious beliefs.
The letter of 31 January 2000, excerpts of which I set out at [21], contains no such claim. It is necessary to refer to each of the six paragraphs.
The first alleges an attack by the police but it was after the Applicant attended the U.S. Embassy. The claim can only be understood as a claim of persecution by the police on political grounds.
The second paragraph alleges an assault by Vladimir Schwetz. It is a claim of religious persecution but no police involvement is mentioned.
The third paragraph alleges, without any specificity, an attack by two assailants. Whether or not the attack was religiously motivated there is no mention of police involvement.
The fourth paragraph refers to an attack by Mekola Chwetz. It appears to have been motivated by religion but again there is no reference to police involvement.
Paragraph 5 states that the Applicant was attacked by the police but no details are provided and there is no statement that the attack was motivated by religion.
However, the RRT referred to this incident in paragraph [19] of its decision. I have quoted the relevant portion of that paragraph at [78] above. The RRT there said that it appeared from “later written submissions” that one of the incidents followed the Applicant’s participation in a religious demonstration.
I have been unable to find that submission in the evidence tendered in the present proceeding. Nevertheless, it does not seem to me that what the RRT said at [19] makes it sufficiently plain that the Applicant was putting forward a claim of direct police involvement in religious persecution.
Paragraph 6 of the letter refers to the assault by the police in a prison cell to which the Applicant was taken after the complaints about a woman’s glove. This has nothing to do with religion.
I set out at [22] to [53] the evidence which the Applicant gave about the issue of police involvement at the oral hearing on 2 February 2000. It is unnecessary to repeat that evidence.
It is plain that, with one exception, the Applicant gave no evidence at the hearing that the police assaulted him because of his religious affiliation.
The only exception is the passage at page 50 of the transcript set out at [52] above.
However, there the Applicant did no more than ask a series of rhetorical questions, one of which was about a police beating. No details of the event were given. Moreover, the Applicant did not seek to supplement or explain this incident in his written submissions or statement delivered to the RRT in response to the invitation from the presiding member.
In my view, it cannot be said that an unexplained rhetorical statement amounted to a claim of police persecution on account of religious affiliation. The onus is upon an Applicant to provide such material as he or she wishes to rely upon to support the claim; see Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [187] (per Gummow and Hayne JJ); see also Muin v Refugee Review Tribunal (2002) 190 ALJR 966 at [265] – [266] per Hayne J.
There was nothing in the submission of 16 February 2000 or the accompanying statement which provided evidence of a claim of religious persecution by the police. This was so notwithstanding that the presiding member had drawn attention to her concerns about whether there had been a failure of state protection or any element of state complicity.
Nor was there any such evidence in the submission of 8 December 2000.
It follows that, in my opinion, the Applicant did not make a claim that he feared harm from the Ukrainian government directly, (i.e. through the police), by reason of his religious affiliation. Accordingly, it cannot be suggested that the RRT wrongly failed to deal with the claim
It was possible to interpret some of the evidence given by the Applicant and by Archbishop Hilarion and Mr Kyseaov as supporting a claim of complicity by the government or failure or inability to protect him. But the RRT dealt with these claims.
It follows that the claims made in these proceedings must fail. A question arises as to the form of order I should make. I will deal with this when considering the procedural issues which I mentioned in the introduction.
Procedural Issues
Since the application fails it is unnecessary to address the question of time limits.
However, if it were necessary for me to deal with that issue, I accept the submission that the time limits stated in the High Court Rules O 55 r 17 and O 55 r 30 are applicable; see Applicant M216/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 931 at [20] – [25] (per Heerey J).
An enlargement of time would therefore have been necessary because the claim for certiorari was made more than six months after the date of the RRT’s decision.
The draft order nisi did not seek an enlargement of time but counsel for the Applicant made an oral application in the course of the hearing.
If I had found in favour of the Applicant on the substantive question, this would probably have been an appropriate case to extend time.
The question of what order I should make depends upon what other matter, if any, is before me in addition to the matter remitted from the High Court; see Applicant S321 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 938 (per Allsop J).
As Allsop J said at [4], it is theoretically possible for an Applicant to propound issues under s 39B(1A)(c) of the Judiciary Act which are wider than the jurisdictional issues raised on the claim for constitutional writs.
The draft order nisi filed in the High Court named as respondents, the Secretary, Department of Immigration and Multicultural and Indigenous Affairs (First Respondent), Principal Member, Refugee Review Tribunal (Second Respondent) and Ruth Cheetham, Member Refugee Review Tribunal (Third Respondent). However in its amended application filed in this Court on 12 September 2003 the Applicant named the Minister for Immigration and Multicultural and Indigenous Affairs as the only respondent to the proceedings. After some debate between the parties as to whether this was an appropriate course Mr Killalea undertook to file a further amended application naming as respondents the parties named in the High Court as well as the Minister.
This course was not opposed and, as I have said, on 16 October 2003 the Applicant filed a further amended application which makes no reference to s 39B.
Thus it seems to me that I am seised only of the matter remitted from the High Court (which I dealt with under O51A r5 of the Federal Court Rules). There is no claim for relief under s 39B.
It follows in my view that the appropriate order is to refuse the claim for an order nisi. The effect of this is that my order will be interlocutory but I will extend time for filing an application for leave to appeal to 21 days from today’s date.
Orders
Thus, the orders I will make are:-
(a)Application for orders nisi contained in the draft order filed on 15 January 2003 refused.
(b)Extend time for the filing of any application for leave to appeal to a date 21 days from today.
(c)Applicant to pay the Respondents’ costs of the proceedings.
I certify that the preceding one hundred and thirty-six (136) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson
Associate:
Dated: 17 October 2003
Counsel for the Applicant:
R Killalea
Solicitor for the Applicant:
I D Graham & Associates
Counsel for the Respondent:
A Markus
Solicitor for the Respondent:
Australian Government Solicitor
Date of Hearing:
1 October 2003
Date of Judgment:
17 October 2003
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