Labara v Minister for Immigration - [2002] FCAFC 145

FEDERAL COURT OF AUSTRALIA
Labara v Minister for Immigration and Multicultural Affairs
[2002] FCAFC 145
MIGRATION – decision of Refugee Review Tribunal refusing a protection visa – decision of primary judge affirming decision of Tribunal – appellants citizens of Ukraine and Jehovah’s Witnesses – whether Tribunal erred by not addressing the question of possible future harm that might befall the appellants – whether the Tribunal erred by not considering whether the Ukrainian government was able, in a practical sense, to prevent such harm – where the Tribunal accepted that the first appellant had been assaulted by private citizens and suffered property damage because of his adherence to the Jehovah’s Witness religion.
Migration Act 1958 (Cth)
Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14 discussed
Minister for Immigration and Multicultural Affairs v Ibrahim (2000) 204 CLR 1 referred to
Yusuf v Minister for Immigration & Multicultural Affairs (2001) 180 ALR 1 followed
GENNADIY LABARA AND MARYNA BILOUSOVA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFIARS
N 437 OF 2001
LEE, MOORE AND MADGWICK JJ
23 MAY 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N473 OF 2001

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

GENNADIY LABARA
FIRST APPELLANT

MARYNA BILOUSOVA
SECOND APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

LEE, MOORE & MADGWICK JJ

DATE OF ORDER:

23 MAY 2002

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

The appeal is allowed.

The orders of the primary judge of 9 April 2001 are set aside.

The decision of the Refugee Review Tribunal of 19 October 2000 is set aside and the matter is remitted to the said Tribunal for reconsideration according to law.

The parties are to pay their own 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

N473 OF 2001

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

GENNADIY LABARA
FIRST APPELLANT

MARYNA BILOUSOVA
SECOND APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

LEE, MOORE & MADGWICK JJ

DATE:

23 MAY 2002

PLACE:

SYDNEY

REASONS FOR JUDGMENT
Introduction

This is an appeal from a judgment of a single judge dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal"). On 19 October 2000 the Tribunal affirmed a decision of the Minister for Immigration and Multicultural Affairs ("the Minister") refusing to grant the first appellant, Mr Gennadiy Labara and the second appellant, Marina Bilousova protection visas under the provisions of the Migration Act 1958 (Cth) ("the Act"). Whether such a visa is granted depends ultimately on whether the applicant is viewed as having a well founded fear of persecution for reasons of (in this case) religion and otherwise satisfies the definition of refugee in the Convention Relating to the Status of Refugees as amended by the Protocol Relating to the Status of Refugees…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] FCAFC 145
Decision Date: 23 MAY 2002

CaseChat Overview and Summary

The appeal arose from a decision of the Refugee Review Tribunal (Tribunal) which upheld a decision by the Minister for Immigration and Multicultural Affairs (Minister) to refuse to grant the first appellant, Mr Gennadiy Labara, and the second appellant, Marina Bilousova, protection visas. The primary issue before the court was whether the Tribunal erred in its interpretation of the evidence, specifically whether it was open to the Tribunal to conclude that the appellants did not satisfy the definition of a refugee under the Convention Relating to the Status of Refugees. The appellants argued that the Tribunal failed to adequately consider the incidents of violence and intimidation they faced due to Mr Labara's association with the Jehovah's Witnesses, and that this amounted to persecution for a Convention reason.

The court held that the Tribunal did not give proper weight to the appellants' evidence regarding the incidents of violence and intimidation they faced, which were directly linked to Mr Labara's religious activities. The court found that the Tribunal's approach to the evidence was flawed, as it did not adequately consider the context and severity of the incidents, and the appellants' fear of future persecution. The court further held that it was open to the Tribunal to find that the appellants had a well-founded fear of persecution for Convention reasons and that this was a material consideration that ought to have been taken into account in deciding the appeal. Consequently, the court set aside the decision of the Tribunal and remitted the matter for reconsideration according to law.

In light of the above findings, the court allowed the appeal, set aside the orders of the primary judge, and remitted the matter to the Tribunal for reconsideration. The decision underscores the importance of a thorough and balanced consideration of all relevant evidence in refugee cases, and the need for tribunals to give proper weight to the appellants' fear of persecution and the context in which it arises.

Orders

Orders of the court

1. The appeal is allowed.

2. The orders of the primary judge of 9 April 2001 are set aside.

3. The decision of the Refugee Review Tribunal of 19 October 2000 is set aside and the matter is remitted to the said Tribunal for reconsideration according to law.

Background

Background to the litigation

This is an appeal from a judgment of a single judge dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal"). On 19 October 2000 the Tribunal affirmed a decision of the Minister for Immigration and Multicultural Affairs ("the Minister") refusing to grant the first appellant, Mr Gennadiy Labara and the second appellant, Marina Bilousova protection visas under the provisions of the Migration Act 1958 (Cth) ("the Act"). Whether such a visa is granted depends ultimately on whether the applicant is viewed as having a well founded fear of persecution for reasons of (in this case) religion and otherwise satisfies the definition of refugee in the Convention Relating to the Status of Refugees as amended by the Protocol Relating to the Status of Refugees (“the Convention”).The background The appellants are de facto husband and wife and are nationals of the Ukraine. The claims made by the appellants in support of their application for protection visas were conveniently summarised by the learned primary judge ([2001] FCA 652 at [4] to [8]):“Mr Labara told the Tribunal his problems commenced in mid 1998 when he became interested in the teachings of the Jehovah's Witnesses. He described in some detail the commencement of his interest in that church and how he began to distribute magazines promoting its teachings. He deposed to three incidents which occurred, he says, because of his involvement with the Jehovah's Witnesses.The first of these incidents took place on 14 June 1998, immediately following his return to the block of units where he lived with Ms Bilousova and his parents. He was bailed up by a group of young men who abused him, calling him a "stinking sectarian" and the like. They blocked his access to the stairs and then beat and kicked him. After they left, he was assisted to his own apartment. The ambulance was called and he was taken to hospital for an x-ray, where it was found he had sustained light concussion to the brain. He was confined to bed for a week. Mr Labara said his whole body was in pain, his head was spinning and hurting, he had a black eye, a swollen cheek and a lip, with multiple body bruises that made it difficult for him to lie down. Because the incident had been reported by the ambulance officer who had taken him to the hospital, a policeman came to the apartment. He asked Mr Labara about the incident; but when he found that Mr Labara could not identify his assailants, or give any information that might lead to their identification, he indicated it would be impossible to prove anything. Mr Labara, in his own words, then "made a decision not to submit a statement". At the hearing before the Tribunal, Mr Labara gave a different version of the police officer's visit. He claimed the police officer indicated that, if Mr Labara made a statement, "it would make things worse". Accordingly, Mr Labara said he was frightened and did not make a statement.According to the evidence given by Mr Labara, the second incident occurred about two weeks after the first, when a fire was lit during the night. Apparently the door of the apartment was badly burnt. With the assistance of neighbours, Mr Labara and his family were able to put out the fire. They then found writing on the adjacent wall containing the words, “death to sectarians”, “bitch, if you want to live, stop your filthy activities or else”. It seems this incident was not reported to the police.Notwithstanding these events, Mr Labara continued to hand out Jehovah's Witnesses magazines. On one occasion in September, that is to say about three months after the first assault, he was proselytising with a friend in a different part of Kiev from his home, an area where he was not known. At an early stage of canvassing in a particular apartment building, he was warned to leave by a man on the second floor of the units. However, Mr Labara and his friend went upstairs and visited other units. As they took the lift downstairs, they were accosted by four people including the man who had previously warned them. That man said, "Looks like you did not get me right, I told you to get out. Now we are going to explain it to you quickly". The four men commenced to beat Mr Labara and his friend. Mr Labara became disoriented, both men were beaten badly and Mr Labara lost consciousness. This last incident happened on a Saturday, Mr Labara was unable to work on the Monday. He and his friend went to a police station to report the incident, but he says he found the police officer uncooperative. He did not take the matter any further, so far as the authorities were concerned. However, Mr Labara and his wife decided to leave the apartment where they were living and to move to an apartment owned by Ms Bilousova’s grandmother. Shortly after that time, they decided to leave the Ukraine and come to Australia.” The Tribunal’s findings

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

LEE, MOORE AND MADGWICK JJ

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: LEE, MOORE AND MADGWICK JJ

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N473 OF 2001

BETWEEN:	GENNADIY LABARA FIRST APPELLANT MARYNA BILOUSOVA SECOND APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	LEE, MOORE & MADGWICK JJ
DATE OF ORDER:	23 MAY 2002
WHERE MADE:	SYDNEY

JUDGE:	LEE, MOORE & MADGWICK JJ
DATE:	23 MAY 2002
PLACE:	SYDNEY