Fofanov v Minister for Immigration & Multicultural Affairs

[2001] FCA 408

FEDERAL COURT OF AUSTRALIA

Fofanov v Minister for Immigration & Multicultural Affairs [2001] FCA 408

MIGRATION – refugee – whether grounds of review of decision of Refugee Review Tribunal allowed by pars 476(1)(a) and (e) of Migration Act 1958 (Cth) established – whether Tribunal had failed to make finding about availability of effective protection and had erred in law by posing for itself the wrong question in relation to protection – whether Tribunal had wrongly asked itself whether protection was denied to the applicants for reason of religion, rather than simply whether effective protection was available to them

Migration Act 1958 (Cth) s 476(1)(a), (e)

SERGUEI FOFANOV & ORS v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 5 OF 2001

LINDGREN J

11 APRIL 2001

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 5 OF 2001

BETWEEN:

SERGUEI FOFANOV
FIRST APPLICANT

NATALIA FOFANOVA
SECOND APPLICANT

VERA FOFANOVA
THIRD APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

LINDGREN J

DATE OF ORDER:

11 APRIL 2001

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The first and second applicants pay the respondent’s costs.

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	N 5 OF 2001

BETWEEN:

SERGUEI FOFANOV
FIRST APPLICANT

NATALIA FOFANOVA
SECOND APPLICANT

VERA FOFANOVA
THIRD APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:	LINDGREN J
DATE:	11 APRIL 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1. Section 29 of the Migration Act1958 (Cth) (“the Act”) provides that subject to the Act, the respondent (“the Minister”) may grant a non-citizen permission, to be known as a visa, to travel to and enter Australia or to remain in Australia or to do both.

2. The applicants (they are respectively husband, wife and daughter, and I will call the daughter “Vera” and refer to the husband and wife by reference to their family relationships) apply under subs 476(1) of the Act for review of a decision of the Refugee Review Tribunal (“RRT”) affirming a decision of the Minister’s delegate (“the Delegate”) not to grant them protection visas permitting them to remain in Australia. It is not in dispute that the Minister delegated all relevant powers to the Delegate pursuant to s 496 of the Act.

3. Section 65 of the Act provides that after considering a valid application for a visa, the Minister, if satisfied of the matters specified in the section, is to grant the visa, or, if not so satisfied, is not to grant the visa. The validity of the applications for the protection visas is not in question. One of the matters specified in s 65 is that the criteria for the visa specified by the Act or the regulations have been satisfied. Section 36 of the Act provides that a criterion for the grant of a protection visa is that the applicant for it is a non-citizen in Australia to whom Australia has protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951, as “amended” by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 (compendiously, “the Convention”).  Australia is a party to the Convention.

4. Article 1A(2) of the Convention provides that a refugee is any person who:

   “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

5. Criteria to be satisfied by an applicant for a protection visa at the time of the decision on the application also include the criterion specified in cl 866.221 of Schedule 2 to the Migration Regulations 1994, which is that the Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Convention.

6. The RRT’s decision was a “judicially reviewable decision” (par 475(1)(b) of the Act); the applicants were entitled to apply to this Court for review of it on certain grounds (s 476); and the Court has the jurisdiction provided by Part 8 of the Act, but no other jurisdiction, with respect to it (ss 485, 486).

7. The applicants’ case is that they are outside the country of their nationality, the Russian Federation, and are unwilling to return to it because of a well-founded fear of being persecuted for reason of religion.

   PROCEDURAL BACKGROUND

8. The applicants arrived in Australia on 18 February 1999.  On 1 April 1999, they applied for the protection visas through Samouil Chilman, Migration Consultant and Agent.  The Delegate refused the applications on 19 April 1999.  On 20 May 1999, the applicants applied to the RRT for review of the Delegate’s decision.  The RRT conducted a hearing on 27 July 2000.  On 20 November 2000, the RRT affirmed the Delegate’s decision.  On 4 January 2001, the applicants filed their application in this Court for review of the RRT’s decision.

   THE REASONS FOR DECISION OF THE RRT

9. The RRT commenced its reasons for decision by referring to the procedural background, the legislative framework and the law relating to the Convention definition of a “refugee”.  It then turned to consider the applicants’ claims and evidence.  In outline, it summarised them along the following lines.

10. The applicants are a family of Jehovah’s Witnesses from Petrozavodsk in Karelia (north west of Russia near Finland).

11. From about the end of February 1997, the applicant wife and child commenced attending Jehovah’s Witness meetings.  About three months later, the applicant husband, a long distance driver, began doing so when he was at home.  The applicants did not conceal their beliefs; on the contrary they told neighbours about them.  The applicants’ friends tried to talk them out of their beliefs and then stopped speaking to them.  However, they found friends through the Jehovah’s Witnesses. 

12. The applicants alleged instances of verbal and physical abuse of the applicant wife in August 1997 and June 1998 but their submissions emphasise two incidents in which Vera was assaulted.

13. Soon after starting her second year at school in mid September 1998, Vera complained that other pupils were calling her a “Baptist” after she had told her girlfriend about the Jehovah’s Witnesses’ meetings.  Her mother asked the teacher to explain that the Jehovah’s Witnesses did not harm people but the teacher was not helpful.  A week later pupils called Vera names, she was pushed over and one of the pupils jumped on her stomach or kicked her in the stomach.  Her mother complained but the teacher said she had not seen the incident and did not think such a thing could occur at the school.

14. At the end of September 1998 Vera was assaulted a second time.  She was hit by a classmate and when she fell, others started to kick her and call her a “Satanist”.  Four classmates and two older children were involved in the assault.  A parent collecting his child stopped the beating.  Vera’s mother reported the matter in writing to the police on 30 September 1998 and the officer promised to investigate.  The mother said she did not know if she had named the assailants in the police report but thinks she probably did.  She went to see the school principal who told her that she could have her child educated elsewhere if she was not happy with the school.  The principal suggested she reconsider involving Vera in her religion.

15. When Vera’s father returned from a driving trip on 2 October 1998, he phoned the police to ascertain progress of the police investigation into the assault.  He was told that the matter had been referred to a named senior district officer who wanted to talk to him.  At the police station, he was told by this officer that he had called the school but was informed that Vera’s parents were responsible as Vera attacked other children and was being turned against her classmates by her parents.  The officer accused Vera’s father of not raising his daughter properly and said he would send the case to some “commission” so that the couple’s parental rights could be taken away.  Vera’s father and the officer argued.  The father threatened to complain to the officer’s superiors and the officer had him put in a cell.  When Vera’s father refused to remove his belt and shoelaces, he was beaten and kicked and called a “stinking sectarian” for no reason at all.  He spent the night in the cell and was released early the next morning and told to watch himself.

16. A few days later Vera’s mother attended a teacher-parents meeting called to discuss the behaviour and learning progress of certain pupils.  But the meeting focussed on the incident involving Vera.  Other parents spoke out against Vera’s mother and said they did not want their children influenced by the Jehovah’s Witnesses.  Vera’s mother was upset and left the meeting when the teacher proposed a vote to condemn the family rather than those who had beaten her daughter.  That night the applicants decided to escape overseas as there was no life for them in Russia.

17. The applicants spent six or seven weeks legally in Turkey and then Malta, trying unsuccessfully to be smuggled by boat to the United States of America.  Then, acting on advice from a holidaying Polish travel agent, they returned to Russia to apply for visas.  Their return to Russia was on 4 December 1998.  Vera did not return to school and the family did not attend Jehovah’s Witnesses’ meetings as they were afraid to leave the house.  After the New Year they applied for Australian tourist visas and came here in mid February 1999.

18. The parents claimed to fear that if they return, Vera will again be subjected to humiliation and beating and may be severely injured or killed, their parental rights will be taken away and the Russian authorities will do nothing to protect Vera.

19. I will have occasion below to discuss certain aspects of the RRT’s findings and reasons in more detail but it suffices to note certain general matters here.  The RRT accepted that the applicants were, or at least regarded themselves as being, Jehovah’s Witnesses, although none of the family have yet been baptised.  It accepted that from early or mid 1997 until about September 1998, the applicant wife, and to a much lesser extent the applicant husband and the applicant child, attended meetings of the Jehovah’s Witnesses.  The RRT found that from the time of Vera’s trouble at school, until they came to Australia in February 1999, the family practised their religion privately at home.  The RRT accepted the applicants’ accounts of their experiences in Russia and found their claims to be plausible and consistently presented.  The presiding Member stated:

    “Their claims are also consistent with independent country information indicating that there is some hostility by people generally towards the Jehovah’s Witnesses and towards religions other than Russian Orthodoxy.”

20. Nonetheless, the RRT thought that the applicants did not have a well-founded fear of persecution for reason of their religion.  It thought that the incidents involving the applicant wife in August 1997 and June 1998 and the incident involving the applicant husband in the cell at the police station in October 1998, were not so serious as to amount to persecution.  There is no challenge to this conclusion on the present application for review.

21. The RRT accepted that Vera was called names and later physically assaulted by classmates on two occasions, that is, in mid and late September 1998.  The RRT also accepted that the teacher, and later the school principal, were sceptical and unhelpful and that at the end of September, Vera’s mother reported the matter to the police who said they would investigate.  However, the RRT found other aspects of the applicants’ evidence about “this issue” “very implausible”.  The presiding Member observed that:

    “bullying, intimidation, verbal and physical abuse of children by other children occurs everywhere, including in Sydney, and it occurs for a myriad of reasons including absorption of discriminatory or hostile parental attitudes.”

22. The RRT said that “[e]ven if these incidents occurred for reason of [Vera’s] religion or some other children’s perception of her religion, the applicants took no other steps to solve the problem or to avail themselves of adequate state protection”, coming instead to Australia to seek international protection.  Accordingly, it concluded that the family did not have a well-founded fear of being persecuted for reason of religion in Russia.

    ISSUES ON THE PRESENT APPLICATION

23. The applicants rely on the grounds of review provided for in pars 476(1)(a) and (e) of the Act. As particularised, both grounds relate to “the protection issue”. In terms of par 476(1)(a), Mr Jones, solicitor for the applicants, submits that the RRT failed to observe a procedure that it was required to observe in connection with the making of the decision, namely, the requirement of par 430(1)(c) of the Act that the RRT prepare a written statement setting out its findings on any material question of fact. He submits that in this case that provision required the RRT to make and set out its findings on the simple factual question whether effective protection was or was not in fact available to Vera.

24. In terms of par 476(1)(e) of the Act, Mr Jones submits that the RRT’s decision involved an error of law in that it misdirected itself by taking the view that the protection issue to be resolved was whether Vera was denied protection for reason of religion, rather than the simple factual question whether effective protection was or was not available to her, for whatever reason.

    REASONING ON THE PRESENT APPLICATION FOR AN ORDER OF REVIEW

25. It is not in dispute that the correct test which the RRT was required to apply in relation to the protection issue is whether effective protection of Vera against persecution for reason of religion is available from the Russian authorities.

26. Mr Jones refers to the following six passages in the “Findings and Reasons” section of the RRT’s Reasons for Decision in which denial of protection is linked with the Convention’s religion ground:

    (1)“The Tribunal accepts independent country information to the effect that some people, including individual police officers, can be hostile towards people with different religious beliefs to the majority, however the Jehovah’s Witnesses are a legally recognised and rapidly growing religion in Russia and according to their own sources, they are not persecuted nor are they denied State protection for a Convention reason.” (my emphasis)

    (2)“The Tribunal cannot be satisfied on the basis of the Principal’s unsatisfactory response to the problem and a rather vague report to police that the State denied the Applicant child adequate protection for reason of her religion.” (my emphasis)

    (3)“In this case the Applicants sought the protection of the State once, in the form of reporting to police the second assault on the Applicant child; the Police took the report and said they would investigate.  One particular officer was verbally abusive about the family’s religion and physically assaulted the Applicant husband and within 2 to 3 weeks the family left the country.  The Tribunal does not accept that this is indicative of a lack of adequate State protection or that the Applicants will not be protected by the State because of their religion.” (my emphasis)

    (4) and (5)      “The huge amount of material submitted by the Applicants refers inter alia, to difficulties experienced by some religious groups in various parts of Russia, including the Jehovah’s Witnesses organisation, however, this material also indicates that the difficulties are more of an organisational and administrative nature, rather than supportive of claims that individual Jehovah’s Witnesses are persecuted by ordinary people or the authorities, or that adequate State protection is denied to them for reason of their religion.  Having considered the independent evidence set out above and submitted by the Applicants, the Tribunal is not satisfied that Jehovah’s Witnesses are persecuted for reason of their religion or that they are prevented from practising their religion or that they are denied adequate State protection for reason of their religion.” (my emphasis)

    (6)“In this case, if the Applicants chose to resume their attendance at Jehovah’s Witnesses meetings or even if they engaged in more public religious activities in Russia, the Tribunal accepts the independent country information to the effect that Jehovah’s Witnesses are not persecuted in Russia now; they are legally registered federally and in many regions and the information, including from the Jehovah’s Witnesses themselves, in Russia, does not suggest that if they are the victim of a criminal act, that they are denied adequate State protection for reason of their religion.  The Tribunal is satisfied that the Applicants do not have a well-founded fear of persecution, for reason of their religion, or for any other Convention reason, if they return to Russia.” (my emphasis)

    Mr Jones submits that the passages emphasised by me above show that the RRT applied the wrong legal test, asking whether protection was denied on the Convention ground of religion.

27. Mr Lloyd, counsel for the Minister, submits, and I accept, and do not understand Mr Jones to contest, that for the applicants to succeed, they must establish:

    (1)that the passages relied on do indeed show that the RRT applied the wrong legal test; and

    (2)that a particular finding in the “Findings and Reasons” section of the RRT’s Reasons for Decision that “the Tribunal is satisfied that adequate State protection is available to the Applicants” is not to be taken at its face value.

    Mr Lloyd submits that the positive finding just noted is indeed to be taken at face value and has the effect of rendering not material any error of law which may, contrary to his submission, be found to be reflected in the six passages set out above on which Mr Jones relies.

28. It is necessary to consider the RRT’s Reasons for Decision in their entirety.  In an early part of the Reasons for Decision, where the RRT addressed “The Refugees Convention”, it stated:

    “¼an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality.  Whenever the protection of the applicant’s country is available, and there is no ground based on well-founded fear for refusing it, the person concerned is not in need of international protection and is not a refugee.”

    The applicants do not challenge the correctness of this statement.  It refers to the availability of effective protection as a matter of fact.  The question is whether the RRT later departed from this statement.

29. I turn next to the lengthy “Claims and Evidence” section of the RRT’s Reasons for Decision, where the RRT made, inter alia, statements to the following effect:

    (1)Vera’s father was told upon inquiring at the police station that the police had acted on the complaint in that the police officer had called Vera’s school but was told that Vera’s parents were responsible for her problems.

    (2)The applicants’ adviser submitted to the RRT that the authorities participated in the persecution.

    (3)Articles covering the Karelia area indicated that religious schools existed, that “acts of open hatred, willy-nilly, occasionally flare up at the background of peaceful multi-denominational situation”, but the examples given in the articles referred to fires at various religious buildings not of the Jehovah’s Witnesses.

    (4)The applicants claimed that if they returned they could be beaten up with impunity and might be killed because there has been an increase in hatred of “anything different” and the National Russian unity groups are flourishing.

    (5)Vera’s father said that the authorities would not allow them to practise their religion freely and would end up “killing them at the police station” and that “fascists serve in the police force and sympathise with nationalistic orthodox movements which hate other religions.”

    (6)The RRT referred to independent country information to the contrary but Vera’s father asserted that the hatred of religious minorities has increased since the ex-KGB Vladimir Putin, who supports the Russian Orthodox Church, came to power.

    (7)The RRT put it to Vera’s father that the material he had submitted indicated that extreme nationalist groups, fascists and skinheads attracted limited support and that increasingly the authorities were taking action against them but he replied that the Government does not prosecute them and that these groups held a march and indiscriminately vandalised cars parked in the streets and that the authorities are too lenient.

    (8)The RRT referred to independent country information showing that the Jehovah’s Witnesses are a registered religious organisation and that since they have existed in Russia for more than fifty years, they are permitted to use the word “Russian” as part of their organisation’s title.

    (9)A criminal complaint against an individual was filed by the victims of disruption of a religious meeting and assault.

    (10)“According to the foreign service secretary at Jehovah’s Witnesses headquarters, Jehovah’s Witnesses in Russia have full freedom of religion and are not persecuted for their religious beliefs; they assemble for their meetings and large conventions and preach the word of God in public¼  Inquiries of the Society in Canada in April 2000 confirm[ed] that this advice is current and that the group is ‘unaware of any incidents of physical abuse of [sic] harassment against individual Jehovah’s Witnesses from either the authorities or from members of the public’¼”

1. I turn now to the “Findings and Reasons” section of the RRT’s Reasons for Decision.  The RRT first noted that bullying, intimidation and verbal and physical abuse of children by other children occurs everywhere, including in Sydney, and that it occurs for a myriad of reasons, including “absorption of discriminatory or hostile parental attitudes”.  But the RRT noted that in such cases parents have a range of options available, “similar to those available to the Applicants in Russia”, including changing schools, and said:

   “¼ there are avenues of complaint and redress available that were not pursued by the Applicant parents.”

2. Next, the RRT said that even if the two incidents in September 1998 befell Vera for reason of her religion or some other children’s perception of her religion:

   “the Applicants took no other steps to solve the problem or to avail themselves of adequate state protection, instead they came to Australia seeking international protection after returning to Russia after failing in their attempts to be smuggled into the USA.”

   These two passages imply that State protection was or may well have been available to the applicants if they had but sought it.

3. There then follows the first two passages emphasised by me set out earlier on which the applicants rely.  But it seems to me that that they are explained as an attempt by the RRT to deal with the claim which the applicants were in fact making, that is, their claim that they were denied police protection for reason of their religion.  The statements numbered (2), (5) and (7) in par [29] above show that the applicants were making that claim.  They were not claiming, for example, that the Russian authorities lacked the financial or manpower capacity to protect Vera.  Their claim was, in substance, that the police shared the attitude of Vera’s classmates.  The RRT found that while individual police officers may do so, the police as a whole do not and the applicants had not really given the police a reasonable opportunity to protect them.

4. The RRT noted that the applicants sought the protection of the State once but it did not accept that the treatment of Vera’s father by one particular officer in the police cell showed a lack of adequate protection.  The presiding Member added:

   “Furthermore, independent country information is that the courts have taken action to protect the rights of individuals and organisations, including the Jehovah’s Witnesses, and the Tribunal is satisfied that adequate State protection is available to the Applicants.” (my emphasis)

   The last words emphasised by me show that the RRT was addressing the adequacy of State protection as a matter of fact as well as the applicants’ claim that the particular police officer’s acts indicated an institutional discrimination against the family for reason of religion.

5. I think that all six passages relied on by the applicants are explained by reference to the particular claim the applicants were making, that is, that they were, and will continue to be, discriminated against by police officers for reason of religion.

6. It could hardly be suggested that the Russian authorities lacked the means to protect religious minorities.  It seems to me that in these circumstances the applicants probably made the only claim which was available to be made: that the police would not protect them for reason of religion.  In using such expressions “for reason of her religion”, “for reason of their religion,” “because of their religion” and “for a Convention reason” in the six passages on which the applicants rely, the RRT was addressing the one and only claim they had raised.  Moreover, there is the finding that effective protection was in fact available to the applicants, which was not, on any reckoning, qualified or limited.  I accept that general and unqualified finding at face value.

7. For the reasons given above, I do not think that either ground of review relied upon is made out.

   CONCLUSION

8. For the above reasons the application should be dismissed with costs (the order for costs should be made against the parents but not against the child).

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated:             11 April 2001

Solicitor for the Applicants:	Mr M Jones of Michael Jones – Solicitor
Counsel for the Respondent:	Mr S Lloyd
Solicitors for the Respondent:	Clayton Utz
Date of Hearing:	4 April 2001
Date of Judgment:	11 April 2001