SZKUC v Minister for Immigration & Citizenship

[2008] FCA 715

FEDERAL COURT OF AUSTRALIA

SZKUC v Minister for Immigration & Citizenship [2008] FCA 715

SZKUC, SZKUD, SZKUE and SZKUF v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD307 OF 2008

MARSHALL J
21 MAY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD307 OF 2008

ON APPEAL FROM A JUDGMENT OF THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKUC
First Appellant

SZKUD
Second Appellant

SZKUE
Third Appellant

SZKUF
Fourth Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MARSHALL J
DATE OF ORDER:	21 MAY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellants pay the first respondent’s costs of the proceeding.

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	NSD307 OF 2008

ON APPEAL FROM A JUDGMENT OF THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKUC
First Appellant

SZKUD
Second Appellant

SZKUE
Third Appellant

SZKUF
Fourth Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MARSHALL J
DATE:	21 MAY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellants appeal from a judgment of the Federal Magistrates Court which dismissed their application for judicial review of an adverse decision of the Refugee Review Tribunal; see SZKUC & Ors v Minister for Immigration & Anor [2008] FMCA 132.

2. The appellants are husband, wife, daughter 1 and daughter 2 respectively. They are citizens of the Russian Federation. The first and second appellants applied to the respondent Minister for a protection visa. They claimed to have a well founded fear of persecution if returned to Russia in the reasonably foreseeable future by reason of their religion. The other appellants were covered by that application as part of the family group.

3. The appellants claimed to be Jehovah’s Witnesses. The first appellant claimed that he was dismissed from his employment in 2005 because of his religious beliefs and had trouble finding other employment for the same reason. He then opened his own billiard bar but claimed that the landlord escalated his rent because of the first appellant’s religious beliefs. He also claimed to suffer from excessive regulatory interest in his business including investigations of complaints about him holding religious observances at his bar. The appellants also made allegations including the following:

   ·attacks occurred at the family home and homes of relatives of the appellants where the appellants had fled from Moscow as a result of persecution;

   ·the third appellant was threatened with rape;

   ·the second appellant had an attempted rape incident at the hands of a youth gang; and

   ·the first appellant was severely beaten by the authorities.

4. The delegate did not find the appellants’ claims to be credible for three reasons:

   ·the claimed mistreatment is inconsistent with country information about Witnesses in Moscow;

   ·lack of knowledge by the appellants about the faith; and

   ·lack of documentation in support of the claims.

5. The delegate considered that the claims made were generally not credible. The delegate did not consider that the family practised the claimed faith.

6. The first and second appellants applied to the Tribunal for a merits review of the delegate’s decision and gave evidence before the Tribunal. Apart from a general unsubstantiated ground that the Tribunal did not act in good faith, the grounds of appeal in the notice of appeal from the Court below each concern the Tribunal’s treatment of evidence obtained after inquiries it made to Mr Kalin, the Chairman of the Administrative Centre of Jehovah’s Witnesses in Russia.

7. The Tribunal, after the oral hearing, wrote to Mr Kalin through a Senior Researcher, requesting any information Mr Kalin had about the appellants and the problems they claimed to experience on account of their religious beliefs. The letter stated that the family claimed to be part of a congregation led by “an elder named Anatoliy Finer” which met at a certain location in Moscow.

8. Mr Kalin wrote to the Tribunal saying that Witnesses in that area have never met at the claimed location and did not know Mr Finer or the appellants. Before contacting Mr Kalin, the first and second appellants agreed that the Tribunal could inquire with the Administrative Centre of Witnesses in St Petersburg about the claimed location for religious worship in Moscow. The Tribunal invited the appellants to comment on Mr Kalin’s response. The appellants said, in response, that they did not know why Mr Kalin was not aware of the place in Moscow where they worshipped. They also said they were surprised to learn that Mr Finer was not an elder. They said they may not be on the list of Witnesses because they were not baptized.

9. The Tribunal considered, having regard to Mr Kalin’s letter, that the first and second appellants were not telling the truth in claiming that they and their daughters were persecuted in Russia for their religious beliefs as Jehovah’s Witnesses. Country information relied on by the appellants referred to the Administrative Centre being aware of all meeting places of Witnesses in Moscow. The claimed meeting place was not amongst them. The Tribunal said that it put:

   …great weight on Mr Kalin’s advice that elders from congregations in the area of Moscow where the applicant and his wife lived had informed the Centre that the Jehovah’s Witnesses had never used the “House of Culture Meridian” as their meeting place.

10. The Tribunal also considered that if Mr Finer had been leading a congregation in Moscow, Mr Kalin would be aware of it. The Tribunal noted advice from Mr Kalin that Witnesses did live in the same street as the appellants, saying:

    … it is difficult to accept that, if a family of Jehovah’s Witnesses had been subject to the sort of sustained persecution to which the applicant and his wife claim they and their elder daughter in particular were subjected, it would not have come to the attention of other Jehovah’s Witnesses living in the same street.

11. The Tribunal did not accept the account given by the first and second appellants about what led them to leave Russia. It concluded by saying that it did not accept that there is a real chance the family will be involved in Witness activity or be persecuted on account of their religious beliefs if they return to Russia.

12. The grounds of appeal concerning Mr Kalin do not appear to have been raised before the Federal Magistrate. There is no record of any submission put below complaining about the Tribunal giving insufficient time to the appellants to obtain support from Jehovah’s Witnesses headquarters in Russia to counter Mr Kalin’s evidence. Further, there is no evidence of any request ever having been made.

13. In response to correspondence from the Tribunal, the appellants said:

    Actually we are going to write to the Jehovah’s Witnesses’ headquarters in Brooklin and express our shock and insist on investigating the reason behind what seems like a betrayal from our Moscow brothers and sisters.

14. There is no evidence that any such letter was sent or that the Tribunal had been asked not to give its decision until the letter had been replied to, if it had been sent. This ground of appeal is without merit, irrespective of what other difficulties it has in succeeding given that the Federal Magistrate does not appear to have been asked to consider the issue. This, after all, is an appeal from the Federal Magistrates Court and not from the Tribunal.

15. The second ground of appeal alleges that the Tribunal did not address the appellant’s objections that Mr Kalin was prejudiced and acting out of fear of the authorities. There is no evidence of any such objection being made or any contention of that sort being made to the Tribunal. In addition, no such argument was advanced below. This appeal ground also lacks merit.

16. The final appeal ground alleges that the Tribunal “did not act in good faith”. There is no basis for such a claim and none was advanced. I have carefully read the Tribunal’s reasons to examine whether there is otherwise any arguable jurisdictional error, but have been unable to find one.

1. The appeal is dismissed with costs.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated:       21 May 2008

The first and second Appellants appeared for the appellants.
Counsel for the First Respondent:	Mr M. P. Cleary
Solicitor for the First Respondent:	Australian Government Solicitor

Date of Hearing:	20 May 2008
Date of Judgment:	21 May 2008