SZKUC v Minister for Immigration
[2008] FMCA 132
•14 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKUC & ORS v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 132 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – merits review not available in judicial review proceedings – weight to be given to evidence is a matter for the Tribunal – Tribunal’s receipt of factual information relevant to an identified issue arising in relation to the decision under review, but not raising a new issue, does not generate obligations under s.425 of the Migration Act 1958 (Cth). |
| Migration Act 1958, ss.91R, 425, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 81 ALJR 515 SZJUB v Minister for Immigration & Citizenship [2007] FCA 1486 |
| First Applicant: | SZKUC |
| Second Applicant: | SZKUD |
| Third Applicant: | SZKUE |
| Fourth Applicant: | SZKUF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1891 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 16 November 2007 |
| Date of Last Submission: | 16 November 2007 |
| Delivered at: | Sydney |
| Delivered on: | 14 February 2008 |
REPRESENTATION
The Applicants appeared in person.
| Counsel for the Respondents: | Mr. J. A. C. Potts |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1891 of 2007
| SZKUC |
First Applicant
| SZKUD |
Second Applicant
| SZKUE |
Third Applicant
| SZKUF |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants are citizens of the Russian Federation where, they claim, they were Jehovah’s Witnesses.They allege that while in Russia their religion led to them being discriminated against, harassed, abused and assaulted. The applicants left Russia for Australia where, they allege, they have attended Jehovah’s Witnesses’ meetings at Villawood, Burwood and Granville.
The applicants claim to fear persecution in Russia because of their religion.
Only the first applicant (the husband) and the second applicant (the wife) have made specific refugee claims. Their daughters (the third and fourth applicants) claim as members of their family unit. For convenience, the first applicant will be referred to as “the applicant” in these reasons.
After his arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on
22 December 2006. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 18 of the Tribunal’s decision (Court Book (“CB”) pages 258 – 272). Relevantly, they are in summary:
Protection visa application
a)following the death of his mother in December 2004 the applicant was introduced by a friend to Jehovah’s Witnesses;
b)he started attending book-reading sessions and services with his wife and elder daughter;
c)the applicant shared magazines and his newly gained knowledge with his colleagues at the bank where he had worked as a manager but he was reprimanded by the proprietor for “propagating sectarian beliefs”. The applicant was sacked in February 2005 after a few reprimands and the proprietor of the bank told him that should any potential employer ask him for a reference the proprietor would make sure the applicant would not get the job;
d)the applicant tried to get jobs at other banks without success. Some of the human resources managers told him they did not need a “sectarian” and others openly insulted him;
e)in March 2005 the applicant opened his own business, a “billiard sport bar”, where he took the opportunity to spread his beliefs by making leaflets and magazines available to people. He also talked to some of his regular customers about his past gambling problems and how he found the right path to happiness. He attracted six people to become devoted Jehovah’s Witnesses and some others started attending their book-reading sessions and services;
f)around the beginning of 2006 the applicant began to encounter a lot of problems. His landlord increased the rent to a ridiculous level, he had a string of baseless inspections from the fire department, the tax office, the sanitation services and the militia (police). The militia said that he was holding sectarian services and conducting sectarian propaganda in a place not designed for religious activities. The applicant was ordered to stop propagating his beliefs or the militia would have to take radical action to protect society from foreign sects;
g)the applicant received a summons to attend the local police department where he was interrogated and threatened with prosecution;
h)once in February 2006 fire inspectors demanded that he get rid of a pile of magazines because it was a fire hazard and he was subsequently fined;
i)the applicant knew many people who were discriminated against because they were Jehovah’s Witnesses. These people were sacked from their jobs, forced to leave their homes and beaten up by people who equated Orthodoxy with Russian national identity;
j)in March 2006, Orthodox priests attended the school of the applicant’s elder daughter to speak to the children. At one of these lessons the applicant’s daughter, who had been attending a Jehovah’s Witnesses’ children’s group, told her classmates about their views. The visiting priest told her to sit down and told the other children that the Jehovah’s Witnesses were a very harmful sect which should be eradicated in Russia, that they were destroying families and stealing Russian souls;
k)during a meeting with the school principal, the applicant’s wife was abused and they were told that their daughter had to renounce her beliefs or leave the school;
l)the applicant’s daughter was beaten by other children at the school and the teachers did not intervene. Families in the neighbourhood also turned against them;
m)their daughter took some magazines to school and invited other children to come to the next Jehovah’s Witnesses’ children’s group meeting. The other children told the school principal and the applicant’s daughter was again beaten. The applicant complained to the police but they refused to act because the other children were underage and they decided not to refer the matter to the special unit dealing with youth hooliganism. The applicant also complained about the school principal but the city administration refused to act on the complaint;
n)where previously the applicant was merely insulted when he tried to talk to people about his faith now they kicked him and threatened him with physical force. The applicant’s neighbours complained to the police about him and his family. He was summonsed again and ordered “to stop any kind of propaganda of banned sect”. The police referred to a regulation from the Ministry of Internal Affairs which supposedly stated that the Jehovah’s Witnesses were a destructive sect;
o)the applicant was unable to be present at a gathering commemorating Christ’s death because the day before some of their neighbours had broken their door beyond repair and had “left threatening collages depicting our future tortures”;
p)the applicant’s wife was attacked by the relatives of a disabled Jehovah’s Witness whom she was visiting. The relatives accused her of poisoning the person’s mind and pushed her down the stairs. She hit her head and suffered constant headaches;
q)the applicant’s local congregation began to experience difficulties gathering at their usual venue because of the constant disruptions caused by people chanting abusive slogans and insulting them. From March 2006 they gathered more and more at the applicant’s bar. At the end of May the militia disrupted a book-reading session on the basis that such gatherings were banned under the new anti-terrorism legislation. After they left, the applicant was assaulted outside his office;
r)the applicant went to the police station and accused the authorities of looking on Orthodoxy as a state ideology. The police beat him before letting him go with a warning. The police also talked to the applicant’s neighbours and warned them against “sectarians”. After this the applicant were scared to let their daughter out of the house;
s)on 16 June 2006 the proprietor of the building the applicant was renting told them that he had received an order from the district administration to terminate his lease. Someone had smashed his place, stolen furniture, computers, television sets, projectors and so forth. The applicant found his Bible and other printed materials desecrated and everything marked with crosses. The applicant reported this to the police but the building owner refused to let him have the security camera tapes and the police refused to open an investigation. The applicant was told that he should have expected such things from people who were sick of infiltration by foreign sects. The applicant was beaten again. The elders advised the applicant to complain and so his wife wrote a lengthy complaint to the city prosecutor;
t)in the middle of June as the applicant’s wife was returning home from work “[s]ome youth gang from neighbourhood” attempted to rape her but she managed to break free and flee. The attackers shouted that the next time they would get her and her daughter as well. The applicant’s family decided to move to the birthplace of the applicant’s wife, Shilovo, to live with her parents but the locals there soon found out that they were Jehovah’s Witnesses. The family suffered harassment from local zealots and other fanatical and ignorant people. The local Orthodox priest organised a campaign to convert them;
u)in mid-July 2006 the applicant’s parents-in-law who were devoutly Orthodox asked them to leave so they went to stay with the wife’s brother in Kasimov, an “isolated and unpopulated village”. The locals soon found out that his family were Jehovah’s Witnesses and one night someone painted swastikas on the house and smashed their windows because they clearly thought “we were kind of religious fascists”. The next night someone set fire to the bathhouse and the applicant’s brother-in-law found out from a friend at the local police station that the applicant was listed as a person of concern in Moscow because he was a “very active and aggressive sectarian”. The applicant did not want to endanger his brother-in-law so they moved back to Moscow. Their neighbours immediately started assaulting them so the applicant decided to flee the country;
v)the first thing they did after their arrival in Australia was to locate a Kingdom Hall to meet their brothers and sisters.
Interview with the delegate on 6 November 2006
In an interview with the delegate, the applicant’s representative submitted that his wife’s former employer might have said that the work reference used by the applicant’s wife to obtain her visa to travel to Australia was forged because the manager was retaliating as he had known that she was a Jehovah’s Witness.
The applicant submitted a document entitled “Effects of Moscow Ban on Jehovah’s Witnesses” and said that in Moscow the applicant and his family attended the Kingdom Hall held in premises rented from a social club called “Meridian” (subsequently referred to by the applicant at the Tribunal hearing as “House of Culture Meridian”) and that there was an elder called Anatoliy Finer.
Tribunal’s enquiry
After concluding a hearing with the applicant and his wife on 7 March 2007, the Tribunal wrote to a Mr Kalin, the Chairman of the Presiding Committee of the Administrative Centre of the Jehovah’s Witnesses in Russia in relation to the applicant and his family. The reply which was received from Mr Kalin advised that the centre had contacted elders from congregations in the area of Moscow where the applicant and his wife had lived but had been informed that the Jehovah’s Witnesses had never used the “House of Culture Meridian” as their meeting place and that they did not know an elder named Anatoliy Finer. Further, Mr Kalin said that there were Jehovah’s Witnesses and even elders who lived in the street where the applicant and his family had lived in Moscow but they did not know the applicant and his family.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal did not accept that the applicant was telling the truth about being persecuted for reasons of his religious beliefs as a Jehovah’s Witness, noting that the response of the Administrative Centre for Jehovah’s Witnesses in Russia to the Tribunal’s enquiry about the applicant revealed the following:
i)the Centre contacted elders from congregations in the area of Moscow where the applicant lived and they informed the Centre that they had never used the “House of Culture Meridian” as their meeting place;
ii)the local elders did not know an elder named “Anatoliy Finer” nor was there a record of there being such an elder in Moscow; and
iii)Jehovah’s Witnesses and elders who lived on the applicant’s street did not know him or his family;
b)the Tribunal placed great weight on the letter from the Centre in light of the fact that the document “Effects of Moscow Ban on Jehovah’s Witnesses” submitted by the applicant himself indicated that the Centre would know of all the meeting places being used by the various congregations of Jehovah’s Witnesses in Moscow and that the “House of Culture Meridian” was not among them;
c)as a consequence of this, the Tribunal did not accept that:
i)the applicant or any other member of his family attended Jehovah’s Witnesses’ Bible studies or services or a children’s group in Moscow;
ii)the applicant and his family were involved in speaking to others about their claimed beliefs or in disseminating religious literature;
iii)the applicant was sacked from his work at a bank in February 2005 for “propagating sectarian beliefs”;
iv)the applicant was unable to obtain jobs at other banks because he was labelled a “sectarian”;
v)his landlord increased the rent for the applicant’s bar;
vi)the bar was subject to baseless inspections from the fire department, tax office, sanitation services and the militia for reasons of his claimed religious beliefs;
vii)fire inspectors demanded that the applicant get rid of a pile of Jehovah’s Witnesses magazines and that he was fined;
viii)the applicant was summonsed twice by the local police department where he was interrogated and threatened with prosecution;
ix)the applicant was assaulted by the militia after they disrupted a Jehovah’s Witnesses meeting at his bar;
x)the applicant was told by police that he was hosting sectarian gatherings at a place not designated for religious meetings and subsequently beaten;
xi)the applicant’s landlord told him that he had received an order from the district administration to terminate the applicant’s lease or that someone smashed the place, stole his furniture and other chattels;
xii)the police refused to open an investigation;
xiii)the applicant’s wife wrote a letter of complaint to the city prosecutor without result;
xiv)the applicant’s elder daughter was beaten by other children at school;
xv)the applicant’s neighbours turned against them and assaulted them;
xvi)the applicant’s wife was assaulted by a disabled person’s relatives or was the victim of an attempted sexual assault; or
xvii)the applicant and his family were harassed when staying with his parents-in-law and brother-in-law; and
d)the Tribunal accepted that the applicant and his family have been attending Jehovah’s Witness meetings in Australia but given its finding that they had not been involved with the Jehovah’s Witnesses in Russia, it was not satisfied that the applicant engaged in this conduct otherwise than for the purpose of strengthening his refugee claims. As such, the Tribunal had to disregard this conduct in accordance with s.91R(3) of the Act.
Proceedings in this Court
The grounds of the application were pleaded as follows:
1. The RRT wrongly presumed that I am not genuine applicant because RRT received information from our former employers and landlords, who were at the least very adverse to us.
2. Refugee Review Tribunal wrongly applied test of “persecution feared”. RRT summarily dismissed all our claims only because it received a letter from the head of the church in Russian which states that they do not know about us. We advised RRT that the church is reluctant to complain, that it is scared to argue with the authorities. Our church is banned in Russia and it is reluctant to jeopardize this unstable relationship with the authorities so the church will not openly get into fight just for the sake of 4 people when the church is responsible for hundreds of thousands.
Tribunal made incorrect findings
The first asserted ground of the review invites the Court to reach a finding on the merits of the application different from that arrived at by the Tribunal. This is not possible. Finding facts and making determinations on the merits of the application overall are tasks reposed in the Tribunal. While this Court may, in judicial review proceedings such as these, review whether the Tribunal observed proper procedures and made its decision according to law, it cannot substitute its own views on the merits of the claim for those of the Tribunal. The Court is concerned with the fairness of the Tribunal’s process, not with the fairness of its conclusion.
But in any event, the Tribunal’s decision was not based on the information received from former employers and landlords. Rather, it was based upon information received from Mr Kalin of the Administrative Centre of Jehovah’s Witnesses for Russia. In relation to the applicant’s landlord, the Tribunal said this:
I do not consider it necessary for me to determine where the truth lies with regard to the allegations made by the applicant’s former landlord. It is sufficient for the purposes of the present application that I find, having regard to the response received from Mr Kalin, that I do not accept that any problems the applicant may have had with his landlord stemmed from his claimed involvement with the Jehovah’s Witnesses. (CB 276)
As to the evidence received from the former employer of the applicant’s wife in relation to the reference which was said to have been fraudulent and the circumstances in which it had been obtained, the Tribunal made no finding. Its preference for the employer’s evidence on the question of the circumstances of the applicant’s wife’s departure simply arose out of its disbelief of the applicant and his wife. In this regard, the Tribunal said:
Both at the hearing before me and in his letter the applicant and his wife rejected the allegation of theft, suggesting that his wife was being blamed for a theft committed by someone else. Once again I do not consider it necessary for me to make a finding in relation to this allegation. It is sufficient for present purposes to observe that, having regard to my rejection of the account of events given by the applicant and his wife, I prefer the evidence of her former employer that, as she had only been employed by the company since January 2006, she would not have been entitled to leave and that she simply failed to turn up for work on 28 August 2006. (CB 277)
Consequently, this ground does not disclose jurisdictional error on the part of the Tribunal.
Tribunal wrongly applied the test of “persecution feared” and dismissed the applicant’s claims on the basis of a letter from the Jehovah’s Witnesses in Russia
Dealing first with the proper test to be applied by the Tribunal, it is apparent from pages 2, 3 and 4 of its decision (CB 256-258) that the Tribunal identified without error the test it had to apply to the applicant’s claim. Having identified the test the Tribunal then turned its mind to whether the information before it satisfied it that the applicant met the criteria for a protection visa. In this case, the Tribunal disbelieved the applicant and his wife and the version of events they advanced in support of their claim for a protection visa. That being so, there was no call for the Tribunal to go further to consider whether the facts alleged by the applicant met the necessary test.
As to the second part of this asserted ground of review, the allegation that the Tribunal “summarily dismissed all our claims” suggests that it did not give proper consideration to the claims in the context of the information which was before it. To the contrary, the Tribunal’s decision record demonstrates that it gave considerable thought and attention to all of the applicant’s claims but considered, as it was entitled to do, that the information received from Mr Kalin was decisive because it effectively disproved the applicant’s allegation that he and his family had been observant Jehovah’s Witnesses while in Russia. That allegation was the foundation of the applicant’s claim to be entitled to protection and once the Tribunal was satisfied that it was untrue, the remainder of the allegations advanced in support of the claim fell away.
Although the applicant challenged the significance given by the Tribunal to the information received from Mr Kalin, the weight to be accorded to it is part of the Tribunal’s fact-finding role. It is entitled to give what weight it deems appropriate to any particular aspect of the evidence before it and no jurisdictional error is demonstrated because it preferred some evidence over other evidence or gave more weight to some evidence rather than to other evidence.
This asserted ground of review does not demonstrate jurisdictional error on the part of the Tribunal.
Breach of s.425
One matter which emerged during the course of the hearing in this Court was whether the Tribunal had breached s.425 of the Act in that it had not invited the applicant to give evidence and present arguments in respect of the material received from Mr Kalin after the Tribunal hearing had concluded. Having considered this issue further, I am satisfied that no breach of s.425 occurred. The information received from Mr Kalin did not raise a new issue in respect of which s.425 of the Act required an invitation be given to the applicant to give evidence and present arguments. The material received from Mr Kalin was a factual matter related to the credibility of the applicant’s claims to have been an observant Jehovah’s Witness while still living in Russia. This was clearly an issue arising out of the decision of the delegate who found the applicant’s claims to be neither plausible nor credible and who did not accept the claim that the applicant and his family were practising members of the Jehovah’s Witness faith (CB 213).
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 81 ALJR 515 shows that s.425 obligations attach to issues which are determinative in relation to the decision under review. In this case the relevant issue was the claim that the applicant and his family had been observant Jehovah’s Witnesses in Russia. The material contained in the communication from Mr Kalin was no more than factual information which the Tribunal took into account when determining that issue: SZJUB v Minister for Immigration & Citizenship [2007] FCA 1486. Consequently, receipt of the communication from Mr Kalin did not require the Tribunal to send a further s.425 invitation to the applicant to attend a hearing.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 14 February 2008
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