NASJ v MIMIA
[2005] FMCA 124
•25 February 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NASJ v MINISTER FOR IMMIGRATION | [2005] FMCA 124 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal misapplied the law in relation to state protection by failing to consider international standards – whether Tribunal erred by effectively requiring applicant not to proselytise where proselytising not an integral part of applicant’s religion. |
Appellant S395 of 2002 v Minister for Immigration & Multicultural Affairs [2003] HCA 71
Minister for Immigration & Multicultural Affairs v Respondents S152 of 2003 [2004] HCA 18
Appellant S395of 2002 v MIMA; Appellant S (2003) 78 ALJR 188
SKFBv Minister for Immigration & Multicultural Affairs [2004] FCAFC 142
VFAC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 367
Applicant A v MIEA (1997) 190 CLR 225
SHKB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 545
| Applicant: | NASJ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 1396 of 2003 |
| Delivered on: | 25 February 2005 |
| Delivered at: | Sydney |
| Hearing date: | 16 November 2004 |
| Judgment of: | Barnes FM |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Mr R. Bromwich |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
That the application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1396 of 2003
| NASJ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 5 June 2003 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa. The applicant, who is a citizen of the Russian Federation, arrived in Australia on 30 December 2000 and applied for a protection visa on 12 February 2001. The application was refused and she sought review by the Tribunal. She attended a Tribunal hearing. The applicant claimed to fear persecution in Russia by reason of her religion. She claimed to be a member of the Church of Scientology, to have been abused and threatened by her neighbours who called her names and to have received abusive anonymous letters over a seven month period in 2000. She then had a week’s holiday in the Maldives. After her return to Russia she claimed that on one occasion in October 2000 while she was distributing leaflets in the underground station, she was threatened, assaulted and warned by members of the Russian National Unity organisation (RNE) to stop disseminating invitations to a “free testing” by Scientologists. She was told that she would be beaten up if her attackers found that she had disseminated invitations there again. She also received another anonymous letter in October 2000 warning her that her religious activities could result in a serious incident. When she complained to the local police station she was told by the officer on duty that she belonged in a mental health institution because her mind was “undermined by Scientologists”. She claimed that she was scared that this would happen and decided to leave Russia. The applicant claimed to fear that if she returned to Russia she would be physically assaulted.
The Tribunal accepted on the basis of the applicant’s displayed level of knowledge about Scientology that she was a member of the Church of Scientology in Moscow and that she had freely and openly attended as many as 100 seminars about Scientology in Moscow between early 1999 and December 2000. The Tribunal found that the difficulties the applicant claimed occurred involving her neighbours and young men claiming to be members of the RNE all appeared to have occurred because she proselytised about Scientology. The Tribunal accepted that thugs in the street had assaulted her as she handed out leaflets on one occasion and that neighbours wrote anonymous letters to her about her “religious activities”, given independent evidence about the pre-conceptions held by some Russians about “cults”. However while the applicant had given oral evidence that she was encouraged to proselytise while she attended the Scientology premises, she also agreed that she was under no past or future obligation to do so. The Tribunal was satisfied that she would not be under such an obligation if she returned to Moscow. It found that while restrictions on the right to proselytise may amount to persecution where proselytising is an integral part of practising a religion, it was satisfied that proselytising was not an integral part of the practice of Scientology. The Tribunal was not satisfied that merely being a Scientologist was sufficient to give rise to a well-founded fear of Convention-related persecution based on independent evidence about the situation of Scientologists in Russia and the applicant’s evidence. The Tribunal did accept that there had been occasional incidents of violence directed at Scientology premises and some harassment of adherents but did not consider that such actions were widespread or commonplace.
As it was the applicant’s handing out of leaflets which led to her being harassed and as the applicant was not obliged by her religion to hand out leaflets, the Tribunal was satisfied that if she did not do so in future, but simply studied and attended lectures about Scientology the chance would be remote of any further harm.
The Tribunal found that the applicant’s claims about her rebuffal by the local militia officer were not implausible but that his reaction reflected a perception of her as misguided and perhaps an annoyance, and also an indifference both to her neighbour’s complaints about her and to her own complaints. The Tribunal did not consider it plausible that the officer represented any official view in his dealings with her. The Tribunal was not satisfied on the basis of such comments that the authorities intended to pursue the applicant because she was a Scientologist. It was satisfied that if she were threatened with serious harm because of her adherence to Scientology she could freely apply to police or other appropriate agencies for help or actioning of a complaint as may other Russian citizens. The Tribunal also referred to independent information illustrating the willingness of the courts to protect the rights of Scientologists. The Tribunal concluded that for the above reasons it found the chance of the applicant being subjected to treatment amounting to persecution because of her religion or for any other Convention reason to be remote and that she did not have a well-founded fear of Convention-related persecution.
The applicant sought review of the Tribunal decision by application filed on 28 June 2003 in which she claimed that the Tribunal did not assess all relevant documents and country information pertinent to her case and made an error of law while applying the definition of well-founded fear to her case. She did not file any written submissions particularising or elaborating on these claims. Neither her oral submissions nor the grounds in the application establish any jurisdictional error. In oral submissions the applicant took issue with the merits of the Tribunal decision based on her view of information about the attitude of the Russian Orthodox Church to Scientology and discriminatory policies against Scientology. However merits review is not available in this court. The unparticularised claim that the Tribunal did not assess all relevant documents and country information is not established. Insofar as the applicant takes issue with the weight given by the Tribunal to particular items of independent country information, questions of weight are a matter for the Tribunal. The applicant did submit information to the Department in support of her claim that the Church of Scientology was under “permanent oppression” from the Russian authorities after the delegate had sought her comment on a number of matters including independent information in relation to the situation of Scientologists in Russia. However not only does the Tribunal record that it discussed with the applicant the substance of independent information in relation to the situation of Scientologists and Scientology in Russia but it also addressed the independent evidence provided by the applicant in its reasons for decision. The Tribunal findings were open to it for the reasons that it gave, including the independent country information to which it referred and no error is established in the Tribunal’s treatment of the independent information.
The applicant did not particularise the manner in which she claimed that the Tribunal had made an error of law in applying the definition of well-founded fear to her case. Despite the very general nature of the grounds as expressed in the application, Mr Bromwich, counsel for the respondent, very properly addressed the court on issues raised by the Tribunal decision, in particular whether any error was apparent in the manner in which the Tribunal dealt with the issue of state protection in light of the decision in Minister for Immigration & Multicultural Affairs v Respondents S152 of 2003 [2004] HCA 18 and whether the Tribunal approach to whether the fear of future harm was remote was consistent with the principles established by the High Court in Appellant S395 of 2002 v Minister for Immigration & Multicultural Affairs [2003] HCA 71. The respondent contended that the Tribunal proceeded in a manner consistent with the principles established in Appellant S395 of 2002 but that even if this was not so, there was an alternative basis for the Tribunal decision in its findings in relation to state protection in relation to which no jurisdictional error was established. Hence even if there was a jurisdictional error on Applicant S395 principles (which was not conceded) it was not one which affected the outcome of the matter. There were two bases for the Tribunal decision. Hence it is appropriate to consider first whether the Tribunal erred in its consideration of state protection.
State protection
The Tribunal reasons for decision reveal that the issue of state protection was raised with the applicant in the Tribunal hearing. In response she indicated that she had complained about the threats she had received to the district militia officer responsible for her residential area and had been rebuffed by him. The Tribunal found that this was not implausible, but that his reaction reflected a perception of her as misguided and something of an annoyance and also an indifference to complaints made by neighbours about her as well as to her own complaints. The Tribunal did not find it plausible that he represented any official view in his dealings with her as claimed. It was not satisfied on the basis of his comments to her that the authorities intended to pursue her because she was a Scientologist. Relevantly the Tribunal also found on the basis of independent evidence that it was not illegal to become a Scientologist in Russia and that most ordinary Scientologists are able to pursue their interest in Scientology freely in Russia. Such findings address any claim of official involvement in feared persecution. The evidence did not establish a basis for a claim of an absence of protection in the sense of involvement or tolerance by the state or in the sense of persecution which was uncontrollable by the authorities (see Applicant A v Minister for Immigration & Ethnic Affairs (1997) CLR 225 at 233 per Brennan CJ and also see McHugh J at 257-8).
It is not necessary for the Tribunal to find that the state can guarantee protection before it concludes that the presence of state protection means that the applicant’s fears are not well founded (MIMA v Prathapan (1998) 86 FCR 95 at 104) albeit that the state is obliged to take reasonable measures to protect lives and safety of its citizens including “an appropriate criminal law, and the provision of a reasonably effective and impartial police force” (see Gleeson CJ, Hayne and Heydon JJ in Minister for Immigration & Multicultural Affairs v Respondents S152 of 2003 [2004] HCA 18 at [26]). In SHKB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 545 Selway J suggested that the majority in S152 had concluded that the relevant status required to provide a “reasonably effective police force and a reasonably impartial system of justice” (at [28]) and that “reasonably effective” in this context is to be determined by “international standards”. However in S152 their Honours did not specify what those international standards are, but made it clear that the Tribunal could not be satisfied that those standards have not been met unless there was evidence to that effect.” (at [28] and see SHKB at [32]).
The Tribunal addressed the issue of the willingness of the state to provide protection if the applicant was threatened with serious harm because of her adherence to Scientology. It was satisfied that, based on independent information, she could freely apply to police or other appropriate agencies for help or actioning of a complaint in the same manner as any other Russian citizen. Importantly, it went on to find that the willingness of the courts to protect the rights of Scientologists was illustrated by country information cited in the reasons for decision. As was stated in Applicant A at 233 per Brennan CJ, in the absence of a finding that the state is unable or unwilling to protect the applicant she cannot establish a well-founded fear of persecution. The Tribunal had regard to the capacity and reality of official reaction. It did not accept that there was evidence that established an unwillingness to provide protection. Indeed there was evidence to the contrary in relation to the willingness of the courts to protect the rights of Scientologists (including evidence of police action). The Tribunal rejected the applicant’s claim that the authorities were involved in her persecution in that they intended to pursue her. There was no evidence before the Tribunal in relation to the circumstances of the applicant to support a conclusion that Russia did not or could not provide its citizen with the level of state protection required by international standards such as to justify an unwillingness on the part of the applicant to seek state protection as discussed in Respondent S152. In such circumstances the Tribunal was not obliged to address expressly the question of international standards. It addressed the evidence before it in relation to the availability of protection from the police and the system of justice. As in SHKB no error has been demonstrated in the Tribunal’s analysis of whether the state had the capacity and willingness to protect the applicant. The Tribunal finding in relation to state protection is sufficient to support the ultimate conclusion reached by the Tribunal that it was not satisfied that Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol to the applicant (also see SHKB at [38]).
The applicant is unrepresented and the Tribunal has not had the benefit of submissions from any legal representative on her behalf in relation to the difficult question of whether the Tribunal in its decision made the same kind of error as that considered by the High Court in Applicant S395. As I am satisfied that there is a independent basis for the Tribunal’s decision in its findings on state protection which is not affected by jurisdictional error, this is not a case in which it is necessary to determine the precise scope of the principles laid down by the High Court in Appellant S395. Nonetheless it is appropriate to record that it has not been established that the Tribunal fell into jurisdictional error in its consideration of whether the applicant had a well-founded fear of persecution for a Convention reason.
In Appellant S395of 2002 v MIMA; Appellant S (2003) 78 ALJR 180 the majority of the High Court held that the Tribunal had fallen into error by finding that a person could not be a refugee if he or she was able to avoid adverse consequences by hiding or being “discreet” about beliefs or conduct which would otherwise be the subject of persecutory attack for a Convention reason, (see SKFBv Minister for Immigration & Multicultural Affairs [2004] FCAFC 142 at [11]). Appellant S395of 2002 involved a claim to refugee status by two homosexual men from Bangladesh. The Tribunal determined that homosexual men in Bangladesh fell within a particular social group and that homosexuals in Bangladesh could not live openly without the risk of serious harm and likely persecution. However there was evidence before it that the appellants had lived together in Bangladesh for over four years without experiencing anything more than “minor problems” (at [183]). On this basis the Tribunal reasoned that as the applicants had conducted themselves in a discreet manner there was no reason to suppose that they would not continue to do so if they returned home. They were denied protection visas. The majority of the High Court held that it was an error to reject an applicant’s claim because the applicant could avoid harm by acting discreetly. There were two majority judgments. Gummow and Hayne JJ stated at [80]
If an applicant holds political or religious beliefs that are not favoured in the country of nationality, the chance of adverse consequences befalling that applicant on return to that country would ordinarily increase if, on return, the applicant were to draw attention to the holding of the relevant belief. But it is no answer to a claim for protection as a refugee to say to an applicant that those adverse consequences could be avoided if the applicant were to hide the fact that he or she holds the beliefs in question. And to say to an applicant that he or she should be “discreet” about such matters is simply to use gentler terms to convey the same meaning. The question to be considered in assessing whether the applicant’s fear of persecution is well founded is what may happen if the applicant returns to the country of nationality; it is not, could the applicant live in that country without attracting adverse consequences.
Gummow and Hayne JJ also stated at [82]:
The Tribunal has no jurisdiction or power to require anyone to do anything in the country of nationality of an applicant for protection. …No less importantly, if the Tribunal makes such a requirement, it has failed to address what we have earlier identified as the fundamental question for its consideration, which is to decide whether there is a well-founded fear of persecution. It has asked the wrong question.
Their Honours found that the Tribunal had erred in failing to ask why the appellants would live discreetly and if it was because that was the way in which they had to live to avoid persecution. It had erred in failing to consider whether the adverse consequences of living openly as a homosexual in Bangladesh sufficed to make the appellant’s fears well founded.
In the same case McHugh and Kirby JJ stated at [39] that it is an error of law to reject a Convention claim because the applicant can avoid harm by acting discreetly and that the Tribunal not only erred in law but had failed to consider the real question that it had to decide - whether the appellants had a well-founded fear of persecution.
Their Honours went on to say at [40]:
The purpose of the Convention is to protect the individuals of every country from persecution on the grounds identified in the Convention whenever their governments wish to inflict, or are powerless to prevent, that persecution. …persecution does not cease to be persecution for the purpose of the Convention because those persecuted can eliminate the harm by taking avoiding action within the country of nationality. The Convention would give no protection from persecution for reasons of religion or political opinion if it was a condition of protection that the person affected must take steps – reasonable or otherwise – to avoid offending the wishes of the persecutors. Nor would it give protection to membership of many a “particular social group” if it were a condition of protection that its members hide their membership or modify some attribute or characteristic of the group to avoid persecution. Similarly, it would often fail to give protection to people who are persecuted for reasons of race or nationality if it was a condition of protection that they should take steps to conceal their race or nationality.
As Simon Brown LJ stated in Secretary of State for the Home Department v Ahmed unreported, United Kingdom Court of Appeal, 5 November 1999 at [14]:
[I]n all asylum cases there is ultimately but a single question to be asked: is there a serious risk that on return the applicant would be persecuted for a Convention reason? If there is, then he is entitled to asylum. It matters not whether the risk arises from his own conduct in this country, however unreasonable.
McHugh and Kirby JJ went on to consider situations where the actions of persecutors had in the past caused a person affected to modify his or her conduct by “hiding his or her religious beliefs, political opinions, racial origins, country of nationality or membership of a particular social group”. (at [43]).
Counsel for the respondent submitted that this case could be distinguished from S395 in that in this instance the Tribunal decision did not involve requiring the applicant in effect not to adhere to her faith, in the sense of following a central tenet of her religion. The evidence which the Tribunal accepted was that proselytising was not an integral part of the practice of Scientology and that the applicant was under no obligation to try to convert fellow Russians to Scientology and that if she returned to Moscow that would continue to be the case. In that context the Tribunal went on to find that merely being a Scientologist did not give rise to a well-founded fear of Convention-related persecution. There was independent evidence that it was permissible to observe the beliefs of Scientology and pursue an interest in Scientology freely in Russia. The applicant had agreed that there was no obligation on her by the Scientologist’s organisation to hand out leaflets and it was this which led to her being harassed. The Tribunal was satisfied that if she did not hand out leaflets in the future but simply studied and attended lectures about Scientology the chance of any further harm would be remote. It was contended that this differed from the situation considered in S395 which was dealing with the situation where it simply was not possible to be openly homosexual anywhere in Bangladesh. In contrast the Tribunal in this instance found that the applicant could openly practise her religion. It is relevant in this context that the Tribunal expressly recognised that restrictions on the right to proselytise may amount to persecution where proselytising is an integral part of practising a religion, but found that proselytising was not an integral part of the practice of Scientology.
This is not a case in which an applicant had modified her conduct in the past because of a claimed fear of persecution for a Convention reason but rather one in which the Tribunal found that proselytising was not an essential part of her religion. It is implicit in the Tribunal findings that if the applicant were to be persecuted for proselytising this would not amount to persecution because of her religion of Scientology or for any other Convention reason. (Also see VFAC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 367 at [24] per Weinberg J). The Tribunal did consider the individual circumstances of the applicant. There is no suggestion that the applicant was, by the Tribunal decision, being required to modify her religious beliefs or opinions or, indeed, hide her membership of the Church of Scientology (see SKFB v Minister for Immigration & Multicultural Affairs [2004] FCAFC 142 at [12]-[13]). No jurisdictional error is established.
As no jurisdictional error is established the application must be dismissed.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate: S. Brown
Date: 25 February 2005
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