SZDJH v Minister for Immigration
[2007] FMCA 249
•23 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDJH v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 249 |
| MIGRATION – RRT decision – Russian claiming persecution as Jehovah’s Witness – Tribunal found claims inconsistent with country information – no corroboration of local involvement in church – no jurisdictional error found. |
Migration Act 1958 (Cth), s.476
| Applicant: | SZDJH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2661 of 2006 |
| Judgment of: | Smith FM |
| Hearing date: | 23 February 2007 |
| Delivered at: | Sydney |
| Delivered on: | 23 February 2007 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Ms V McWilliam |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2661 of 2006
| SZDJH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application filed on 19 September 2006, which was set down for final hearing on the applicant’s entitlement to relief under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 14 August 2006 and handed down on 5 September 2006. The Tribunal affirmed a decision of a delegate made on 30 October 2003, refusing to grant a protection visa to the applicant.
The interval between the delegate’s decision and the Tribunal’s decision is accounted for by an earlier decision of the Tribunal handed down on 6 April 2004, which was set aside by a consent order in this Court on 16 May 2006. Neither the Tribunal’s reasons in that first decision, nor the reasons for the consent remitter appears in the material before the Court.
The applicant arrived in Australia in July 2003, having previously resided in New Zealand after leaving his country of nationality, Russia, in 2001. His statements in his visa application, which he told the Tribunal had repeated claims which he initially made in New Zealand but did not press at the appeal level, set out a history of events in St Petersburg in 2001 as the reason for his fearing return to his country of nationality.
The applicant claimed that he was persecuted by police because of being a Jehovah’s Witness. He said:
Everything started when I visited recruitment office asking from them to release from military service few young members of our religion. After 3 days police came to my home and arrested me. They took me to the police station where I was beated and interrogated. To avoid any other contact with police I hide myself. I moved to live in the house of my good friend. Police was searching for me two times at my home but they couldn’t find me. But police was searching for me 3 times at my work, but also they couldn’t find me, because as manager of the rent a car office I was always outside of my office. I was not aware how big is a crime to avoid military service which is not allowed according to our believe and religion, but according to the law avoiding military service one could be punished to 5 years of jail. Doesn’t matter on what base you avoid military service. Police was searching for me even at the Kingdom Hall two times. Police in civil suits was waiting outside of our Kingdom Hall and when our service finished they stopped me and arrested me. They took me to the police where I was again interrogated and beated. Police asked from me under threat to deny from my believes and do not influence young Yehovah witnesses to avoid military service.
The applicant maintained this account in his subsequent statements to the Tribunal and in his oral evidence. He claimed that he had been mistreated by police on three occasions, being the first occasion when he sought exemption from military service for other people, and on two occasions subsequently when he was arrested after attending Kingdom Hall.
The applicant presented a number of documents to the Tribunal. These included some statements from a New Zealand person corroborating attendance at a Kingdom Hall in Christchurch. He also presented some documents in Russian which he said were statements by the person with whom he hid in St Petersburg, and which purported to corroborate that period of residence and also his baptism in 2001.
The applicant also presented some country information, in particular concerning the banning of Jehovah’s Witnesses organisations by a Moscow Court in 2004, and claims that this had had adverse consequences for Jehovah’s Witnesses elsewhere within Russia where the organisations had not been proscribed.
In its statement of reasons, the Tribunal identified, conscientiously in my opinion, the claims made by the applicant and all the material that he had presented, the evidence that he gave when he attended a hearing by the first Tribunal on 12 February 2004, and his evidence when attending a hearing held by the reconstituted Tribunal on 10 July 2006. A transcript of these hearings is not in evidence before me, and I have no reason to doubt the description given by the Tribunal in its reasons. It appears that it listened to the tapes of the first hearing for itself.
At the hearing held in 2006, the Tribunal questioned the applicant about his involvement in Jehovah’s Witnesses congregations and activities since he came to Australia in 2003. The applicant referred to having attended the Kingdom Hall in three Sydney suburbs, but did not produce any evidence corroborating this. According to the Tribunal:
I asked the Applicant if he could ask one of the members of this Bible study group for a letter saying that they knew him, that he was a Jehovah’s Witness and that he had been attending their Bible study group for a particular period. I noted that such evidence would assist his case as would a letter from one of the elders at the Kingdom Hall saying that they knew him, that he was a Jehovah’s Witness and that he had been attending the Kingdom Hall and participating in their activities.
At the end of the hearing, the Tribunal again suggested that corroboration would be of assistance:
I gave the Applicant until 24 July to produce letters from the elders at Kingdom Hall and from the Bible study group he was attending. The Applicant referred to his evidence that the Jehovah’s Witnesses did not believe in people asking for protection and that they believed that people should be patient and tolerant. He said that it had only been very recently, in June 2006, that S had agreed to provide him with the letter in relation to his baptism. He said that he might only be able to give me telephone numbers, names and addresses. I noted that if he could do this I would expect that he would be able to obtain letters. I noted that it was not for me to make the Applicant’s case for him.
The Applicant asked how critical it was that he had continued attending the Jehovah’s Witnesses in Sydney. He said that he knew that many Jehovah’s Witnesses did not visit meetings for long periods of time. He also said that even if he was not telling the truth about the persecution he had suffered in Russia he could still attend the meetings at the Kingdom Hall and participate in Bible studies. He said that lots of people did this without being Jehovah’s Witnesses. He said that for Jehovah’s Witnesses it was a rule to tell the truth and he said that he had told me the truth but he said that Jehovah’s Witnesses were human and they made mistakes. I noted that whether the Applicant had continued attending meetings and Bible study went to whether I believed his claims. I noted that I was aware that the Jehovah’s Witnesses welcomed anyone who wanted to attend their meetings and their Bible study but such people would not be able to get letters saying that they were Jehovah’s Witnesses. I noted that this was why I had asked him to produce this sort of evidence. The Applicant indicated that he understood.
On 24 July 2006 the Applicant produced to the Tribunal a copy of a medical alert form in his name dated 11 July 2005 stating that no blood transfusion was to be administered to him in accordance with his religious beliefs. He said that only Jehovah’s Witnesses held these beliefs. He also produced a copy of a railway pass issued to him on 11 August 2005 and he said that he had undertaken a lot of travel in Australia and had visited Kingdom Halls seldom. He said that he had visited the last Kingdom Hall only a few times after he had changed his address in June 2006.
A second matter which the Tribunal discussed with the applicant was information from the Chairman of the Presiding Committee of the Administrative Centre of Jehovah’s Witnesses in Russia based in St Petersburg, which had been given to the Tribunal in October 2002, and which had also been discussed with the applicant at the first hearing. This was that:
… when young Jehovah’s Witnesses refused military service as conscientious objectors and applied for alternative civil service, their cases were usually put into a pending file waiting for the implementation of alternative civil service. He had said that there were currently no Jehovah’s Witnesses imprisoned in Russia for evading military service.
The Tribunal also had other general information which raised doubt in the Tribunal’s mind as to the likelihood of the events claimed by the applicant. It is clear it discussed this information with the applicant at the hearing.
Apart from the Tribunal’s questioning, the applicant was on notice that country information did not support claims of problems for Jehovah’s Witnesses in St Petersburg, nor of police harassment for supporting conscientious objections to military service by Jehovah’s Witnesses, and that there was doubt whether the applicant was a Jehovah’s Witness in the absence of corroboration of his membership, since these two matters had formed part of the reasons for the delegate for refusing the visa application.
Under the heading “Findings and Reasons”, the Tribunal identified these two concerns as its reasons for a conclusion: “I do not accept that the Applicant is a Jehovah’s Witness as he claims”, and its rejection of his account of harassment in St Petersburg in its entirety. It is unnecessary for me to set out the Tribunal’s reasoning in detail. In my opinion, its reasoning has apparent cogency and was supported on the material that was before the Tribunal. I am not persuaded that either the reasoning or procedures followed by the Tribunal reveal any jurisdictional error.
The applicant presented four arguments in an amended application filed on 1 December 2006:
RRT was wrong:
1.Decision record page 17 (Green Book page no. 137), paragraph 3:
RRT states that Mr. K had said that there were currently no Jehovah’s Witnesses imprisoned in Russia for evading military service, but at page 162 (Green Book) indicate “it is possible that Jehovah’s Witnesses who refuse military service could be detained” (“Watch Tower Bible and Tract Society of Canada 22 October 2002” paragraph 5. This is prove in the article: “Conscientious Objection To Military Service” (Green Book pages 101-102), which the RRT does not comment on.
2.RRT does not comment about my medical alert. Decision record pages 16 (Green Book page 136) par.6 – pages 17 (137), par.1 and page 117 (Green Book). But this is the second most important document.
3.Decision record page 17 (Green Book page 137) par.2: S did not sign in his letter state when I am had been baptised. However S did state his name and surname. RRT does not state it. Name and surname are instead of signature. This is a very important document confirm my baptise. I attach a copy of this document.
4.I did not received any documents which state that I am a member of our organisation in Australia, because I am deprived association in our organisation because of the my fault (offence). This is specific of Jehovah’s Witnesses. I will receive this document when will restore me in communication in meeting.
(Decision record 17 page; 137 page of Green Book; par.1)
Ground 1 challenges the Tribunal’s reliance on the information from a local official of the church, when rejecting the applicant’s claimed history in St Petersburg. The Tribunal referred to this evidence in its findings and reasons:
A further reason for not accepting that the Applicant is telling the truth about his involvement in the Jehovah’s Witnesses is that his claims with regard to what happened to him in Russia do not accord with the independent evidence available to the Tribunal. The Applicant claims that after he approached the military recruitment office on behalf of three young Jehovah’s Witnesses who were evading military service he was arrested and detained briefly by the police on three occasions. He claims that he was not charged with any offence but that he was humiliated and beaten. As I put to the Applicant in the course of the hearing before me, the Chairman of the Presiding Committee of the Administrative Center of Jehovah’s Witnesses in Russia, based in St Petersburg, Mr K, told the Tribunal in October 2002 that, when young Jehovah’s Witnesses refused military service as conscientious objectors and applied for alternative civil service, their cases were usually put into a pending file waiting for the implementation of alternative civil service. He had said that there were currently no Jehovah’s Witnesses imprisoned in Russia for evading military service.
As I put to the Applicant, in the light of this information I do not accept that he is telling the truth about his attempts to assist the three young Jehovah’s Witnesses to evade military service and the consequences he claims this had for him.
The argument in Ground 1 of the amended application does not, in my opinion, provide reasons for finding jurisdictional error in this part of the Tribunal’s reasoning. The argument goes only to the merits of the Tribunal’s reasoning. It is not clear to me that the factual basis for the argument now presented was ever presented to the Tribunal, but even if it was, this would not reveal jurisdictional error.
The applicant in his oral submissions today presented a further argument challenging this part of the Tribunal’s reasoning. This was that the Tribunal should not have relied upon the statements from the chairman of the church, but should have obtained information from the Russian authorities as to how objections to military service by Jehovah’s Witnesses were dealt with by police and other authorities. He argued that the chairman “is interested in this matter, and does not wish the members of my organisation seeking refuge”.
However, the Tribunal was not obliged to conduct further inquiries, and might have been criticised if it relied upon information from the Russian authorities themselves. In my opinion, this argument only challenges the merits of the Tribunal’s factual assessment, and does not reveal jurisdictional error.
Ground 2 of the amended application criticises the absence of “comment” by the Tribunal about the medical alert which, with the railway pass, was the only evidence presented to the Tribunal to show involvement in Jehovah’s Witness activities in Australia.
It is clear that the Tribunal was aware that the applicant had presented that document, since it notes this at several places. It is also clear, in my opinion, that the Tribunal took it into account. I consider that it was open to the Tribunal to regard that piece of evidence as not overcoming the absence of direct corroboration of the sort which the Tribunal had suggested to the applicant at the hearing.
The Tribunal’s conclusion from the absence of that evidence was:
I consider that the Applicant’s failure to produce such evidence strongly suggests that he has not in fact continued attending the Jehovah’s Witnesses in Sydney as he hinted at the end of the hearing before me.
I am not satisfied that this conclusion was not open to the Tribunal, and that it did not take into account the medical alert document before arriving at it.
Ground 3 in the amended application criticises the Tribunal’s reasoning in relation to the corroborative documents in Russian. The Tribunal’s reasoning about this was:
It is true that the Applicant produced two letters to the Tribunal (differently constituted) from Mr R stating that the Applicant had regularly attended weekly meetings at a Kingdom Hall in Christchurch, New Zealand, that he had shown a keen interest in continuing his Bible studies which he had started in St Petersburg and that he had participated in home Bible study with Mr R on a weekly basis. However Mr R’s knowledge that the Applicant had attended Bible study in St Petersburg can only have come from the Applicant himself and on the Applicant’s own evidence he required the assistance of a dictionary when he was undertaking Bible study with Mr R which suggests that Mr R would not have been in a good position to form a judgment about any prior Bible studies the Applicant may have undertaken. The Applicant also produced an email message from his friend V in St Petersburg in purported corroboration of his evidence that he had been arrested and beaten by the police in St Petersburg because he was a Jehovah’s Witness. However it is difficult to put weight on this sort of communication from a friend. I do not consider that the purported corroboration provided by the Applicant’s friend outweighs the problems I have with the Applicant’s own evidence. It is also true that at the hearing before me the Applicant produced a letter in Russian, unsigned, which he said had been sent to him by S and which the interpreter confirmed stated that the Applicant had been baptised in April 2001. However it is difficult to put weight on this document given that it is unsigned. There is a telephone number on the document but even if the Tribunal were to telephone that number it would have no guarantee as to whom it was speaking or whether the person in question was in fact a Jehovah’s Witnesses elder as the Applicant claims Mr S is.
The applicant’s present argument challenges the Tribunal’s statement: “it is difficult to put weight on this document given that it is unsigned”. First, he suggested that the reference to the name of the claimed author at the end of the documents was sufficient. Secondly, he now presents to the Court a new document in Russian with a signature, which he says is the signature of the witness S.
However, the latter piece of evidence was not in front of the Tribunal, and it cannot be criticised for not taking it into account. I consider it was open to the Tribunal to have weighed the Russian documents which were produced to it in the manner which it did.
Ground 4 seeks to explain to the Court why the applicant was unable to produce evidence from local Jehovah’s Witnesses corroborating his membership of their community. He explained this to me further today. He said that at that time he was subject to an excluding resolution due to an unspecified offence, which allowed him to attend meetings but precluded other Jehovah’s Witnesses from having social or other communication with him.
This explanation may or may not have been true – it is not a matter which I need to determine. What is clear, and is admitted by the applicant to me, is that he did not provide that explanation to the Tribunal. He said that at the time of the Tribunal’s proceedings he was still hoping to overcome the ban, and to get documents to prove his association with the local Jehovah’s Witnesses. In these circumstances, I am unable to identify any criticism that can validly be made of the Tribunal, whether by way of procedural fairness or otherwise, against its adverse conclusions drawn from his inability to present local corroboration.
I have taken into account all the arguments presented by the applicant. However, for the above reasons, I am unable to identify jurisdictional error affecting this decision of the Tribunal, and I must therefore dismiss the application.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 6 March 2007
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