SZBAK v Minister for Immigration

[2004] FMCA 547

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBAK v MINISTER FOR IMMIGRATION [2004] FMCA 547

MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal ignored relevant material or failed to make necessary inquiries – whether Tribunal erred in failing to have regard to earlier Tribunal decision. 

NARY v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 45
Aksahin v Minister for Immigration & Multicultural Affairs [2000] FCA 1570
Craigv South Australia (1995) 184 CLR 163
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Soboleva v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 353
Eloujenko v Minister for Immigration & Multicultural Affairs [2001] FCA 980
Vassilieva v Minister for Immigration & Multicultural Affairs (2001) FCA 733
Aksahin v Minister for Immigration & Multicultural Affairs [2000] FCA 1570
SZAIC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 103

Applicant: SZBAK

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ1444 of 2003

Delivered on: 7 September 2004

Delivered at: Sydney

Hearing date: 10 June 2004

Judgment of: Barnes FM

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Mr D. Jordan

Solicitors for the Respondent: Australian Government Solicitors

ORDERS

1. That the application is dismissed. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ1444 of 2003

SZBAK

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 1 July 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 Ukraine, arrived in Australia on 29 September 2000.  On 14 March 2001 he lodged an application for a protection visa which was refused.  He sought review of that decision by the Tribunal.  He attended a Tribunal hearing. 

2. The applicant claimed to fear persecution in the Ukraine for reason of his religion as a member of the Salvation Army.  He claimed that he was beaten in April and May or June 2000 because of his involvement with the Salvation Army, a minority religion in Ukraine, and that although he reported the attack to the police nothing was done.  He also claimed that when he received call-up papers for compulsory military service in April 2000 he sought an alternative to military service because of his religious beliefs and that this was refused by the interviewing army officer.  He stated that he considered the Ukrainian army to be evil and amoral and was strongly opposed to conscription because of his religious beliefs.  He claimed that he had consulted a member of the Salvation Army who told him that the Salvation Army leaves it to its members to decide for themselves whether to undertake compulsory military service.  He claimed that according to the Ukrainian Constitution he was entitled to undertake an alternative form of service because he is a member of a religious group but that his application to carry out an alternative to military service had been refused.  He claimed that a few days after an interview with the recruiting officer he was assaulted in the street not far from his home and he considered that this was because of his refusal to serve in the army.  At the end of May 2000 a military officer together with police and soldiers came to his home one evening when he was not there.  The purpose of that visit is unclear.  Because of that visit he had left home and work.  He had applied to the regional court on 22 May 2000 with respect to what he believed was his right to an alternative to military service.  In July 2000 the regional court rejected his application to be permitted to undertake an alternative to military service.  He decided he had to leave Ukraine. 

3. The applicant claimed that he did not intend to apply for a protection visa when he first arrived in Australia as he hoped further efforts by his mother to resolve the matter in Ukraine would be successful.  He now believes the army would seek to punish him at all costs because he resisted military authorities and that he will be imprisoned for up to three years for refusing to undertake his military service.  He also referred to growing political turmoil in Ukraine.  He elaborated on his claims at the Tribunal hearing. 

4. The Tribunal did not accept that the applicant had ever been a member of the Salvation Army.  This finding was based on the limited extent of the work that the applicant claimed to have carried out for the Salvation Army in the Ukraine; his failure to produce material to confirm his membership of the Salvation Army or to contradict the finding by the delegate of the respondent that the Salvation Army did not oppose military service in the Ukraine and his failure to join the Salvation Army in Australia.  Nor was the Tribunal satisfied that the applicant was attacked because of involvement with the Salvation Army, a minority religion in Ukraine, or that he had been bashed as a “sectarian”.  The Tribunal was unable to find any evidence of mistreatment of Salvation Army workers in the Ukraine.  It accepted independent evidence that the Salvation Army operated in Ukraine without interference from the authorities. 

5. The Tribunal considered the applicant’s claim that he was first bashed in the apartment building in which he lived.  Nothing was said to him in the course of the attack and nothing was stolen from him by two men who had been waiting for him.  The Tribunal found that the applicant had produced no evidence that satisfied it that this was anything other than a random criminal assault.  There was no evidence that satisfied it that he was attacked because of involvement with the Salvation Army.  The Tribunal also considered the second occasion on which the applicant claimed to have been attacked (which at the hearing he said was in early May 2000 when he was on his way home after shopping locally).  Again the Tribunal saw nothing in the evidence of the applicant to satisfy it that this was other than a random criminal assault.  Although the applicant claimed that the word ‘sectarian’ was used by one of the attackers, the Tribunal found that this may have been because the applicant mentioned that he was a non-smoker and sportsman rather than because of any suspected involvement of the applicant with the Salvation Army.  The applicant wore no Salvation Army uniform, did not attend Salvation Army services and claimed to be a member of a very small group of Salvation Army members in his area who engaged in no more than charitable work.  The applicant himself had conceded that he did not believe the assaults on him had been carried out by or at the behest of the military authorities.  The Tribunal was not satisfied on the evidence before it that either of the assaults were for reason of his involvement with the Salvation Army. 

6. The Tribunal also considered the applicant’s claim that he had a conscientious objection to serving in the army because of his religious beliefs.  It did not accept that such person would join the Salvation Army, as the applicant’s evidence as to the Army’s views about conscientious objection indicated that it did not oppose its members undertaking military service.  The Tribunal also had regard to independent information about the involvement of the Salvation Army in service to the defence forces of the countries in which it operated.  It did not accept that the Salvation Army in the Ukraine would be out of step with its parent organisation in the United Kingdom.

7. The Tribunal accepted the applicant’s evidence that he did not wish to serve in the Ukrainian army and that the Ukrainian Constitution provided for alternative service for those for whom performance of military service was contrary to their beliefs, that the right to such alternative service was limited to listed religious denominations and that those persons of denominations not covered by that decree were not entitled to alternative service and must undertake military service. The Tribunal was not able to satisfy itself that the Salvation Army was a registered religion in the Ukraine. It accepted that the effect of the Ukrainian legislation was that the applicant was required to undertake military service in Ukraine. The Tribunal was prepared to accept that the effect of the current legislation was to discriminate against members of minority and unregistered religions but was not satisfied that this amounted to serious harm within s91R of the Migration Act 1958. The Tribunal had regard to the fact that the applicant had unsuccessfully applied to the local court for an exemption from military service. However having regard to the Tribunal understanding of the policy of the Salvation Army (that it is not opposed to military service) the Tribunal was not satisfied that the applicant had a genuine religious conviction which would entitle him to an exemption from military service, or a valid reason to seek an alternative to military service.

8. The Tribunal acknowledged that it may be that on return to Ukraine the applicant would be prosecuted by the Ukrainian authorities and required to complete his military service.  The Tribunal did not accept that his personal perceptions of the army were a valid reason to avoid his service obligations.  It was satisfied that any action taken against the applicant in this respect would not be for a Convention reason.  The Tribunal was satisfied that the applicant faced prosecution not persecution. 

9. The Tribunal stated that it was fortified in the view it had taken of the applicant’s claims by his conduct on arrival in Australia.  It had regard to the applicant’s 5 month delay in lodging an application for a protection visa, considered his explanation and concluded that such delay was inconsistent with the actions to be reasonably expected of a person who had fled his homeland because of a fear of Convention-based persecution. 

10. The Tribunal concluded that for all the above reasons it was not satisfied that, looked at individually or cumulatively the sum of the applicant’s past experiences amounted to serious harm constituting persecution for any Convention reason.  The Tribunal was not satisfied that the harm the applicant feared from undertaking military service was for any Convention reason or that the applicant faced a real chance of Convention-related persecution upon his return to Ukraine.  His claimed fear of Convention-based persecution was said not to be well founded.  The Tribunal concluded that he was not a refugee.

11. The applicant sought review of the Tribunal decision by application filed in this Court on 28 July 2003.  The application raises four grounds:

    1.      The Tribunal can not dismiss the applicant’s key claims, e.g. the claim he has been a member of the Salvation Army; that some members of the Salvation Army are subject to harm in the Ukraine and etc. simply due to “lack of documentary evidence”.  The fact that the applicant has been unable to provide the Tribunal with documentary evidence does not indicate the applicant is not a refugee.

    2.      Given the Tribunal’s lack of expertise regarding the Salvation Army’s religious doctrines, one would have have expected the Tribunal, before making any specific claims upon which the decision is made, to seek an expert advice from either a local branch of the Salvation Army or from any other relevant institution.  In the present case the Tribunal’s decision is based on its assertion (which is totally illogical and wrong) that the Salvation Army in the Ukraine does not oppose its members undertaking military service.

    3.      The Tribunal ignored relevant country report information, which was consistent with the applicant’s case.

    4.      The Tribunal ignored its own decision of 27.02.2001 (N99/28142), where the mentioned issues were raised and resolved.

Ground 1

1. The Tribunal did not dismiss the applicant’s key claims in relation to the Salvation Army simply due to lack of documentary evidence as claimed.  The finding that it was not satisfied that the applicant had ever been a member of the Salvation Army was based on a number of factors as set out, above relating to the limited involvement of the applicant with the Army, the fact that he had not joined the Army in Australia as well as the fact that he had not produced any independent evidence to substantiate either his membership of the Salvation Army in the Ukraine or its attitude in the Ukraine to military service (despite the comments of the delegate of the respondent that the Salvation Army did not oppose military service in the Ukraine). Moreover the Tribunal reasons for decision, which is the only evidence before the Court as to the conduct of the Tribunal hearing, indicates that the Tribunal raised with the applicant whether he had sought a certificate from the Salvation Army group with which he was associated to the effect that military service was contrary to the beliefs of the Salvation Army.  The Tribunal findings in this respect were open to it on the material before it.  No error is established in the manner contended.

Ground 2

1. The second ground relied on by the applicant also takes issue with the Tribunal’s findings of fact and does not establish a jurisdictional error.  There is nothing in the material before me to suggest that the Tribunal undertook to make any further inquiries or that this was a case in which it was necessary for it to do so.  It is for the applicant to establish his case.  The applicant was aware from the decision of the delegate, of independent information indicating that the Salvation Army does not shun military service but respects the right of individuals to arrive at their own decision.  Indeed the applicant indicated to the Tribunal that this was his understanding of the advice he had received from a friend about the attitude of the Salvation Army in Ukraine.  In these circumstances there was no obligation on the Tribunal to seek expert advice from a local branch of the Salvation Army or from any other relevant institution.  This is not one of those rare cases where it can be said that it was obvious that material centrally relevant to the decision was readily available such that the failure of the Tribunal to make its own inquiries amounted to jurisdictional error (cf Prasad v MIEA (1985) 6 FCR 155). There was no obvious omission or obscurity which needed to be resolved before the decision was made. No jurisdictional error is established in this respect.

Ground 3

1. The third ground relied on, that the Tribunal ignored relevant country report information, consistent with the applicant’s case, is not particularised.  There was no clarification in the application, in the applicant’s outline of submissions or his oral submissions as to what relevant country report information was referred to in this context although certain information relied on in another Tribunal decision and also set out in the decision of this Tribunal is referred to in his submissions.  The weight to be given to particular items of independent information is a matter for the Tribunal.  There is nothing to suggest that the Tribunal failed to take into account relevant considerations in the Craigv South Australia (1995) 184 CLR 163 or MIMA v Yusuf (2001) 206 CLR 323 sense in a manner constituting jurisdictional error. Insofar as this ground refers to the country information cited in the different Tribunal decision about another applicant from the Ukraine (decision N99/28142 of 6 February 2001 which was attached to the applicant’s outline of submissions) this claim does not establish jurisdictional error. There is nothing before the Court to establish that the Tribunal failed to take into account relevant information. The Tribunal reasons for decision acknowledge an indebtedness to the Tribunal member responsible for the February 2001 decision. The Tribunal decision sets out and takes into account independent information also cited in the earlier decision. No error is established in the Tribunal treatment of country information. The Tribunal was not satisfied either that the applicant was a member of the Salvation Army or that, if he was, that he had a fear of persecution ‘by reason of’ his religion. As discussed in relation to ground 4, in the context of the factual findings of the Tribunal about the beliefs of the applicant, the Tribunal did not (as the applicant suggested) ignore country information ‘consistent with’ his case.

Ground 4

1. The final ground raised in the application is that the Tribunal ignored the decision of 6 February 2001 where issues were raised and resolved.  In written submissions it was contended that the earlier decision was based on a number of findings, that there were similar elements in the present case and that the Tribunal decision was at odds with its own findings in the earlier matter, particularly in relation to the discriminatory effect of the Ukrainian legislation on religious grounds.  There are a number of points to make about this argument.  First there is a line of authority (see NARY v Minister for Immigration & Multicultural & Indigenous Affairs[2003] FCA 1255 at [70]) to the effect that “other than possibly in exceptional circumstances … the fact that the Tribunal has not referred to, relied on or decided a matter consistently with, other decisions of the Tribunal is irrelevant: also see Soboleva v MIMA (2001) 113 FCR 353, Eloujenko v MIMA [2001] FCA 980 and Vassilieva v MIMA (2001) FCA 733. The decision of Moore J at first instance in NARY was upheld on appeal by the Full Court in NARY v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 45. There is nothing before the Court to suggest that the earlier Tribunal decision was referred to and relied upon by the applicant in the proceedings before the Tribunal (cf Vassilieva at [13]) in such a way as to oblige the Tribunal to address the earlier decision as contended. Nor are there otherwise exceptional circumstances. No error is apparent in the Tribunal failure to address or adopt the reasoning in the February 2001 Tribunal decision. The significant distinction between the February 2001 decision and this decision is that in the earlier case the Tribunal accepted that the applicant was a member of a minority religion, had a conscientious objection to military service and that he would continue in his objection to military service on religious grounds. On the basis of such factual findings it considered the effect of the Ukrainian legislation, finding that it was discriminatory against some people on religious grounds and that the consequence to that particular applicant was more than prosecution and was serious enough to amount to persecution and that the applicant had a well-founded fear of persecution ‘by reason of’ his religion. In contrast, in this case the primary finding of the Tribunal was that the applicant had never been a member of the Salvation Army. Hence his claim to fear persecution as a member of a minority religion and as being opposed to military service on religious grounds was not established (whether or not the legislation discriminated against some people on such religious grounds). Moreover it is apparent that the Tribunal also considered his claims on the alternative basis that he was a member of or involved with the Salvation Army but found that, given that it was not satisfied on the evidence before it, including that of the applicant, that the Salvation Army was opposed to military service, it was not satisfied that the applicant had a genuine religious conviction which would entitle him to exemption from military service. It did not accept that his personal perceptions of the Army were a valid reason for him to avoid his military service obligation and was satisfied that any action taken against him would not be for any Convention reason. The fact that a differently constituted Tribunal reached a different conclusion about a different applicant does not establish error. The Tribunal did not ignore the applicant’s claims or misunderstand them.

1. It is also worthy of note that while the Tribunal was prepared to accept that the effect of the Ukrainian legislation was to discriminate against members of minority and unregistered religions, it was not satisfied that this amounted to serious harm within s91R of the Migration Act (a provision that was not in force at the time of the earlier Tribunal decision). No jurisdictional error is established on the basis contended.

Other claims

1. The applicant took issue generally with the Tribunal approach to his claim to be seeking an alternative to military service for reason of his religious convictions.  However it is apparent from the Tribunal reasons for decision that the Tribunal properly understood and considered the applicable principles in relation to laws of general application, in particular laws relating to compulsory military service and the need for a Convention reason for any apprehended persecution such as discriminatory operation of a law (see Aksahin v Minister for Immigration & Multicultural Affairs [2000] FCA 1570 at [22]-[26]). The Tribunal acknowledged that the applicant was seeking an alternative to military service and had not been seeking to avoid his military duties. It cannot be said that it misunderstood or failed to take into account this aspect of his claims. Moreover, as it had put to the applicant in the course of the hearing, the Tribunal was unable to find any evidence that the army in the Ukraine had been involved in flagrant violation of human rights of its citizens. This is not a case where the Tribunal erred by failing to consider whether the applicant feared punishment for refusing to undertake military service where that service was likely to involve him in a breach of the Nuremberg principles (cf SZAIC v MIMIA [2004] FMCA 103). Insofar as the applicant seeks merits review such review is not available in the court.

2. Finally in oral submissions the applicant complained that in the course of the hearing the Tribunal member asked too few questions and concentrated on one issue. There is no transcript of the hearing before the Court. There is nothing in the Tribunal reasons for decision to suggest that the Tribunal hearing was conducted in a manner which either failed to comply with s425 of the Migration Act or constituted any denial of procedural fairness.

3. The Tribunal’s primary finding that the applicant had never been a member of the Salvation Army was open to it on rational grounds and does not disclose any jurisdictional error. Nor is any error demonstrated or apparent in its reasoning in support of the alternative finding that even if the applicant had been a member of or involved with the Salvation Army, any sanction imposed on him for failing to perform compulsory military service or the absence of an alternative to such service would not be persecution for a Convention reason.  As no jurisdictional error has been 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: 

Date: