Labara v Minister for Immigration & Multicultural Affairs [2001] FCA 652

FEDERAL COURT OF AUSTRALIA

Labara v Minister for Immigration & Multicultural Affairs

[2001] FCA 652

GENNADIY LABARA & MARINA BILOUSOVA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 1206 of 2000 WILCOX J 9 APRIL 2001 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N1206 of 2000

BETWEEN: GENNADIY LABARA & MARINA BILOUSOVA

APPLICANTS

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: WILCOX J

DATE OF ORDER: 9 APRIL 2001

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicants, Gennadiy Labara and Marina Bilousova, pay the costs of the respondent, Minister for Immigration and Multicultural Affairs. 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 N1206 of 2000

BETWEEN: GENNADIY LABARA & MARINA BILOUSOVA

APPLICANTS

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: WILCOX J

DATE: 9 APRIL 2001

PLACE: SYDNEY

REASONS FOR JUDGMENT

WILCOX J: 1 This is an application for review of a decision of the Refugee Review Tribunal. The Tribunal affirmed a decision of a delegate of the respondent to this application, the Minister for Immigration and Multicultural Affairs refusing an application for protection visas made by the applicants, Gennadiy Labara and Marina Bilousova. The applicants are husband and wife. They are nationals of the Ukraine who came to Australia in December 1998. 2 On 4 February 1999, the applicants lodged an application for protection visas; the basis of the claim being the well-founded fear of persecution on religious grounds held by the male applicant. The application by Ms Bilousova was dependent upon that of Mr Labara. 3 The application for protection visas was refused on 7 May 1999. The applicants then sought review of that decision by the Refugee Review Tribunal. Both applicants attended a hearing before the Tribunal in August 2000. A decision was given on 19 October 2000. As indicated, the decision was unfavourable to the applicants. 4 Mr Labara told the Tribunal his problems commenced in mid 1998 when he became interested in the teachings of the Jehovah's Witnesses. He described in some detail the commencement of his interest in that church and how he began to distribute magazines promoting its teachings. He deposed to three incidents which occurred, he says, because of his involvement with the Jehovah's Witnesses. 5 The first of these incidents took place on 14 June 1998, immediately following his return to the block of units where he lived with Ms Bilousova and his parents. He was bailed up by a group of young men who abused him, calling him a "stinking sectarian" and the like. They blocked his access to the stairs and then beat and kicked him. After they left, he was assisted to his own apartment. The ambulance was called and he was taken to hospital for an x-ray, where it was found he had sustained light concussion to the brain. He was confined to bed for a week. Mr Labara said his whole body was in pain, his head was spinning and hurting, he had a black eye, a swollen cheek and a lip, with multiple body bruises that made it difficult for him to lie down. Because the incident had been reported by the ambulance officer who had taken him to the hospital, a policeman came to the apartment. He asked Mr Labara about the incident; but when he found that Mr Labara could not identify his assailants, or give any information that might lead to their identification, he indicated it would be impossible to prove anything. Mr Labara, in his own words, then "made a decision not to submit a statement". At the hearing before the Tribunal, Mr Labara gave a different version of the police officer's visit. He claimed the police officer indicated that, if Mr Labara made a statement, "it would make things worse". Accordingly, Mr Labara said he was frightened and did not make a statement. 6 According to the evidence given by Mr Labara, the second incident occurred about two weeks after the first, when a fire was lit during the night. Apparently the door of the apartment was badly burnt. With the assistance of neighbours, Mr Labara and his family were able to put out the fire. They then found writing on the adjacent wall containing the words, "death to sectarians", "bitch, if you want to live, stop your filthy activities or else". It seems this incident was not reported to the police. 7 Notwithstanding these events, Mr Labara continued to hand out Jehovah's Witnesses magazines. On one occasion in September, that is to say about three months after the first assault, he was proselytising with a friend in a different part of Kiev from his home, an area where he was not known. At an early stage of canvassing in a particular apartment building, he was warned to leave by a man on the second floor of the units. However, Mr Labara and his friend went upstairs and visited other units. As they took the lift downstairs, they were accosted by four people including the man who had previously warned them. That man said, "Looks like you did not get me right, I told you to get out. Now we are going to explain it to you quickly". The four men commenced to beat Mr Labara and his friend. Mr Labara became disoriented, both men were beaten badly and Mr Labara lost consciousness. 8 This last incident happened on a Saturday, Mr Labara was unable to work on the Monday. He and his friend went to a police station to report the incident, but he says he found the police officer uncooperative. He did not take the matter any further, so far as the authorities were concerned. However, Mr Labara and his wife decided to leave the apartment where they were living and to move to an apartment owned by Ms Bilousova's grandmother. Shortly after that time, they decided to leave the Ukraine and come to Australia. 9 The Tribunal accepted the essence of the claims made by Mr Labara. The Tribunal member noted that the evidence of Ms Bilousova confirmed this evidence. The member had interviewed Ms Bilousova separately from Mr Labara, at least during part of the hearing. Under the heading "Findings and Reasons", the Tribunal said this. "The Tribunal accepts that the applicant suffered some harm - two beatings and an incident involving a fire outside his apartment. The Tribunal accepts that the term 'sectarian' was used as a term of abuse during the first beating and the property attack, and that the second beating occurred whilst he was proselytising (an activity of his church involving going from door to door and trying to interest people in his faith). The Tribunal accepts that the harm suffered by the applicant was occasioned by adverse reaction to his religion. Harm suffered for reason of religion often falls within the ambit of the Convention. However, not every threat of harm or interference with a person's rights for a Convention reason, constitutes 'being persecuted'. For example, persecution by private individuals or groups, does not bring a person within the Convention unless the State either encourages that private persecution or is (or appears to be) powerless to prevent it." 10 The Tribunal referred to authority for that proposition and went on: "The applicant has sought to establish that the State – that is, the government in the Ukraine and what he contends is its tame press – actively encourages persecution of Jehovah's Witnesses. However, on the basis of independent evidence, the Tribunal is not satisfied that this is the case." 11 The Tribunal referred at some length to what it called "country information". This included material supplied by the United States Department of State, the Immigration and Nationality Directorate for the British Home Office, and material supplied by the Department of Foreign Affairs and Trade of the Australian government ("DFAT"). The gist of these references is that the government generally respects rights of religious practice with the exception of some "non-native religions". 12 The DFAT material addresses the question, "What is a non-native religion?" It is said that Baptists, Pentecostals and Jehovah's Witnesses, are considered traditional religions, and respected almost as much as native traditional religions. The contrast is made with religions that are very new and which cannot be attributed to Christianity, for example, Scientology, Bogordichny, Great White Brotherhood and others. 13 The Tribunal also noted the web-site of the Jehovah's Witnesses organisation gave membership statistics for various countries. The web-site claimed that, in 1998, the year of Mr Labara's involvement, there was a membership in the Ukraine of 101,755 persons, meeting in 823 congregations across the country. For the following year, the web-site claimed an increased membership to 107,045, with an additional 100 congregations. The Tribunal commented that the increase in numbers "is a clear indication that the organisation is not being suppressed by the authorities; nor are Ukrainians terrified to join or frightened to continue their membership of the church". 14 The Tribunal also noted, from the web-site, that the Jehovah's Witness organisation had challenged governments of a number of countries, for allegedly taking actions adverse to the church. The web-site referred to court cases in Russia, Georgia, Greece and France. 15 Having considered this evidence, the Tribunal concluded: "This independent evidence does not negate the fact that the applicant was assaulted and that he was assaulted because some individuals were affronted by his religious beliefs. However these incidents must be seen as individual and random incidents of harm directed at the applicant and not as persecution for a Convention reason." 16 The Tribunal then referred to what it called a "lack of clarity" about whether Mr Labara sought the protection of the State. Reference was made to the two different accounts of the police visit to Mr Labara's apartment after the first incident. The Tribunal preferred the earlier account, made in Mr Labara's written statement. The Tribunal commented it did not indicate that the police condoned the assault; rather, without any identifying details about the assailants from the victim, or any witnesses to the assault, the police may have felt there was nothing further they could do. 17 In relation to the third assault, the Tribunal accepted the police did not take a statement, but commented that the applicant and his friend had a number of other options. There were at least two other police stations at which they could have made their statement; one near the scene of the assault, the other near the applicant's home. They could have gone to the office of the Procurator General, they could have enlisted the aid of the Jehovah's Witness church itself, and have asked it to make representations at a higher level about the lack of co-operation from a particular police officer. 18 The Tribunal said that, when it asked the applicant why he had not taken the matter of his assault to the Jehovah's Witnesses' leadership, he said he was not thinking about such things: "We discuss it among ourselves and know that such things happen." 19 The Tribunal noted that there was no suggestion in the evidence of any complaint in respect of the property attack, when the door of the apartment was fired. The Tribunal then said: "On the basis of the above information, the Tribunal is not satisfied that the authorities can be said to be unwilling or unable to protect their citizens. The fact that the applicant experienced incidents about which he either did not make a statement, or did not persevere in any way if discouraged from making a statement, cannot be taken as evidence that the authorities condoned such incidents. On the occasion on which the police were alerted to an assault by the ambulance officers, they responded appropriately." 20 It was for this reason that the Tribunal dismissed the application for review. The Tribunal repeated, in its conclusion, its acceptance of the claim about the two assaults and the property damage, and that these could be attributed to adverse reaction to Mr Labara's newfound religious beliefs. The Tribunal commented these were "individual attacks with different perpetrators being involved". The Tribunal rejected the claim that the State is implicated through its manipulation of the media and it is unwilling or unable to protect its citizen. 21 Mr Labara appeared for himself at the hearing today, although assisted by an interpreter. He prepared a statement summarising the Tribunal's findings and setting out submissions in relation to them. The statement is clear and was helpful to me in considering his case. 22 Mr Labara made it clear to me that he profoundly disagrees with the Tribunal's conclusion that it ought not to be satisfied that the Ukrainian authorities are unwilling or unable to protect their citizens against religious persecution, at least in the case of Jehovah's Witnesses. He pointed out that he told the Tribunal that two of his friends had been assaulted, apparently in the course of handing out Jehovah's Witnesses publications; one of them being beaten to the point that he is now confined to a wheelchair. The Tribunal recorded these claims but made no finding about their correctness. No doubt, this was because the information came to the Tribunal on a hearsay basis, the events having reportedly occurred after Mr Labara left the Ukraine. 23 The gist of Mr Labara's complaint is that the Tribunal should not have been persuaded by the country information and the information on the Jehovah's Witnesses web-site. Mr Labara accepted the Tribunal was entitled to look at this information, because it was entitled to look at all information relevant to his case. However, he contends the Tribunal was not entitled to use this information as a basis of its factual finding, in preference to the information he had put before the Tribunal. When I asked him what was the basis of that submission, he said the country information and web-site information conflicts with the real position in the Ukraine. 24 It will be apparent, from what I have said, that the real issue Mr Labara seeks to raise is the correctness, in a factual sense, of the Tribunal's conclusion about the ability or willingness of the Ukrainian authorities to protect their citizens from persecution on religious grounds. The country information tends to suggest there is an absence of persecution on this basis in the Ukraine and, at least as far as the government is concerned, there is no antagonistic attitude to the practice of the Jehovah's Witnesses beliefs. The web-site claims the Jehovah's Witness Church in the Ukraine has a significant number of followers and both the number of followers and the number of congregations is rapidly rising. I think the Tribunal was justified in regarding this as inconsistent with widespread and significant persecution. 25 On the other hand, Mr Labara gave evidence of severe mistreatment of himself, following the commencement of his involvement with the Jehovah's Witnesses, and indicated his friends had similarly been subjected to mistreatment. The Tribunal accepted that mistreatment of Mr Labara had occurred, and that this was related to his involvement with the Jehovah's Witnesses. The real problem was whether the Tribunal should have been satisfied this conduct was tolerated or condoned by the Ukrainian government. 26 There is no inconsistency between accepting evidence of mistreatment for religious reasons of particular individuals by other individuals and, at the same time, failing to be satisfied that the government condoned such mistreatment, or was unwilling to do anything about it in a proper case. Leaving aside for the moment the circumstances of Mr Labara's complaints to the police, there was nothing in this case to indicate any general attitude of condonation or unwillingness. 27 When one considers the evidence concerning the complaints to the police it will be noted that, in the first incident, the evidence is at best ambiguous. On one version, the version given by Mr Labara in his written statement, it was his decision not to submit a statement of evidence and he made that decision because the police officer indicated the impossibility of proving anything against the assailants if Mr Labara could not identify them. It seems to me that, if the police officer said that, this was no more than commonsense; and that Mr Labara, in effect, recognised that fact in deciding not to take the matter any further. 28 On the second version of this incident, the situation is somewhat different; but two comments may be made. First, the Tribunal did not accept the correctness of the second version. Second, the position remained that Mr Labara was unable to identify the assailants or provide information which might lead to their identification; so it would not be surprising if the police officer was discouraging. 29 The police officer's reaction to the third assault is more difficult to understand. There seems to be reason for thinking it might have been possible to identify at least one of the persons involved in that assault, because of his association with the unit on the second level of the building. Mr Labara does not say the police officer indicated he could not do anything, but merely that he would not take the statement that he and his friend offered to make. It is difficult to excuse that approach. However, it seems a large jump to infer, from the reaction of one officer in one police station, that the government of the Ukraine, considering that entity as a whole, was unable or unwilling to protect Ukrainian citizens against assault arising out of their religious beliefs. As the Tribunal pointed out, other options were available to Mr Labara. I can understand the Tribunal's unwillingness to make a finding that the Ukrainian government was unwilling or unable to protect its citizens in the absence of evidence of these other options having been tried and proved unsuccessful. 30 I make these comments by way of acknowledgment of Mr Labara's submissions. However, as I pointed out to him, these are all matters of fact and the facts were for the Tribunal to determine, not the Court. Mr Labara was made aware at the directions hearing of the restricted jurisdiction given to the court under Part 8 of the Migration Act 1958 and his attention was directed to s 476 of the Act. 31 Mr Labara contended today that the case fell within s 476(1)(g) of the Act, in that there was no evidence or other material to justify the making of the Tribunal's decision. I took him to mean there was no evidence or other material to justify the decision of the Tribunal not to be satisfied about the unwillingness or inability of the government of the Ukraine to grant protection. 32 However, the answer to this submission is provided by sub-s (4) of s 476. Paragraph (a) of that subsection says that the ground specified in s 476(1)(g) "is not to be taken to have been made out unless the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material … from which the person could reasonably be satisfied that the matter was established." That is not this case. This is not a case of the Tribunal reaching a positive conclusion which could only be reached if a particular matter was established. This is a case of the Tribunal failing to be satisfied of something that needed to be established by the applicants if their case was to succeed. 33 Paragraph (b) of s 476(4) refers to a situation where the decision maker based the decision on the existence of a particular fact and that fact did not exist. Plainly, that has no application to this case. 34 It will be of no real consolation to Mr Labara for me to express my sympathy with him. He appears to have suffered for his religious beliefs. It is understandable that he would wish to avoid returning to the Ukraine, and to remain in Australia where he can practise his religion without fear of persecution. However, the Court, like the Tribunal, is bound by the terms of the Migration Act and the limitations that are inherent in the definition of "refugee" in the Convention on Refugees. 35 I am unable to see that the Tribunal fell into any error of law, or took any step which falls within any of the grounds set out in s 476(1) of the Act. This being so, there is no basis upon which the Court can interfere with the Tribunal's decision. The application for review must be dismissed. 36 The order that I make is that the application be dismissed and the applicants - that is, Mr Labara and Ms Bilousova - pay the costs of the Minister.