NATC v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1376

FEDERAL COURT OF AUSTRALIA

NATC v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 1376

NATC & ANOR v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N808 of 2003

MADGWICK J
18 NOVEMBER 2003

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N808 of 2003

BETWEEN:	NATC and NATD APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	18 NOVEMBER 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.The applicants pay the respondent’s costs of the hearing today, but not of the aborted hearing of 10 November 2003, in the sum of $3,000.

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	N808 of 2003

BETWEEN:	NATC and NATD APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MADGWICK J
DATE:	18 NOVEMBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(revised from transcript)

HIS HONOUR:

1. The applicants seek review under s 39B of the Judiciary Act 1903 (Cth) of an adverse decision given by the Refugee Review Tribunal (‘the Tribunal’). The applicants are a de facto married couple, nationals of Russia, who came to Australia in February 2000. About a year later their applications for protection visas were refused by a delegate of the respondent and they applied for a review by the Tribunal. The Tribunal in June of this year handed down a decision affirming the decision of the delegate.

2. The applicants claims were founded on claims by the male applicant, whom I will call the husband, to be a refugee.  It appears that he had performed military service in the army of the then Soviet Union in the 1980s and was a capable and experienced soldier.  He claims that, as a past soldier, he remained in the Army Reserve in Russia and was liable to call-up for periodic training as a reservist.  He refused to comply with a notice calling him up for such training because he anticipated that, as an experienced soldier, he would be sent to Chechnya.  He opposed the war with Chechnya and for that political reason did not wish to serve there.

3. He also had refused to sign a contract to serve in Chechnya which had been offered to him by the military authorities.  He claims that he was pressured to sign the contract and after refusing to do so was abducted, taken into a forest, badly beaten and, in effect, left for dead.  His reason for not signing the contract was, again, political opposition to the war in Chechnya.

4. The Tribunal Member, after a hearing at which both applicants gave evidence and produced documents, rejected important aspects of the husband’s claims.  There was material before the Tribunal which indicated that reservists were liable to call-up for up to two months training.  However, a high ranking Russian officer with responsibility in the area had said in 2000, that reservists would not be sent to Chechnya because that was against the law and that field training was not military service but was organised for different purposes.  A representative of an independent group with an interest in monitoring Russian affairs had said in the same year that she had no knowledge of reservists being sent to Chechnya.

5. A further aspect of the applicants’ claims was that the respondent’s Department had made heavy-handed inquiries about the husband by name in Russia and it was feared that these inquiries would identify him as an applicant for refugee status in Australia, in consequence of which he further feared persecution if returned to Russia.  As to that, there was material before the Tribunal in a 1997 US State Department document that denied that there had been any case in which punitive measures had been taken for overstaying a visit to the United States or for having applied for asylum there.

6. The Tribunal Member referred to independent materials which indicated that a large proportion of the Russian forces fighting in Chechnya was made up of contract soldiers many of whom were reservists who had been attracted by generous offers of pay.  The Tribunal also relied on advice from the Australian Department of Foreign Affairs and Trade that reconscription of ex-servicemen for the purpose of fighting in a conflict within Russia, as the Chechnyan rebellion is and was, could only take place on a voluntary contract basis.

7. Therefore, the Tribunal Member did not accept that the husband had any obligation to serve in Chechnya, nor for reasons given, did the Tribunal Member accept that the husband had committed any crime by refusing to sign a contract to serve in Chechnya.

8. The Tribunal Member continued:

   ‘Since I do not accept that the Applicant has committed any crime or that he is evading any military service obligations which he has under Russian law, I do not accept that [alleged documents requiring him to attend on the civil authorities in relation to the “call up issue”] are genuine.  I likewise do not accept that ... the Applicant’s mother-in-law ... received a summons ... [or that] she was told that the Applicant was evading military service ... I do not accept that the Applicant is being sought by the police, the District Interior Department, the Public Prosecutor’s Office, the Military Prosecutor’s Office, or the military authorities for breaching any military service obligations by refusing to serve in Chechnya.’

9. The Tribunal Member considered a claim by the husband that:

   ‘… they might not be looking for him at the official level but they would do away with him at the unofficial level ... he was not sure if it had been an official call-up and ..., as things were in Russia now ... they would kill him or imprison him, because it had gone too far.  The Applicant’s wife said that she thought they had been acting half legally and half illegally ... She said that she and the [husband] did not know what sort of documents they had sent or how the whole apparatus functioned, but they were truly scared ... The [husband’s] representative likewise suggested that the Russian authorities had used a mixture of lawful and unlawful means in the Applicant’s case.’

10. However, the Tribunal Member simply did not accept that the applicants were telling the truth, ‘In relation to their claims regarding the attempt by the Russian authorities to force the [husband] to serve in Chechnya.’

11. The Tribunal Member accepted that the husband had been seriously injured in a manner suggesting a considerable assault and that he held an opinion opposed to the war in Chechnya, but the Tribunal Member did not accept that there was any real chance that the applicant would be forced to serve in Chechnya if he returned to Russia, or persecuted by reason of any refusal to serve in Chechnya.  The Tribunal Member accepted that the applicant may have failed to comply with his obligations as a reservist by failing to respond to the notice calling him up for training.  The Tribunal Member said:

    ‘However if he is exposed to any penalty as a result I do not accept that this will be for reasons of his political opinion opposed to the war in Chechnya or for any other Convention reason.’

12. When this matter was first listed before me, the service provider contacted to provide the interpreter to the Court provided a person without the requisite skills.  The husband had attempted to conduct the case.  However, his wife frequently interrupted and generally assisted.  Upon resumption, when a fully qualified interpreter of ability was provided, the husband did not appear and the wife conducted the case on her own and on his behalf.  She is an educated woman, an engineer, but evidently lacks, as might be expected, much legal understanding of the limited bases upon which this Court can intervene and of how a case for intervention might be made out.

13. I struggled to make these matters clear to her but without avail.  She had numerous factual criticisms of the Tribunal Member’s findings and approach, but none began to show an error of law on his part, let alone that there was a jurisdictional error.  The factual findings might, perhaps, not have been made by everybody, but that of itself is of no significance. 

14. The only matter that occurred to me as a possible, relevant error by the Tribunal was that the Tribunal Member may have failed to comprehend that, if the applicant failed to comply with his obligations as a reservist for reasons of his political opinion opposing the war in Chechnya and if he believed on a well-founded basis that compliance with those obligations might land him in Chechnya, that could amount to a viable claim for refugee status.  However, even assuming such an error, it is clearly not an operative error, because such a claim would depend upon the fear that compliance with the reservist obligations would result in the husband being required to serve in Chechnya.  The Tribunal’s findings are directly to the contrary of that.  It must follow that such a claim must have been rejected on the factual findings made without jurisdictional error by the Tribunal. 

15. In these circumstances, it seems that there is nothing the Court can do for the applicants and the application will be dismissed.

16. The applicants are to pay the Minister’s costs of the hearing today but not of the aborted hearing of 10 November 2003.  I assess costs in the sum of $3,000.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:             27 November 2003

The Applicant appeared in person.
Counsel for the Respondent:	Mr Kennett
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	18 November 2003
Date of Judgment:	18 November 2003