Rebchuk v Minister for Immigration & Multicultural Affairs [2001] FCA 739

FEDERAL COURT OF AUSTRALIA

Rebchuk v Minister for Immigration & Multicultural Affairs

[2001] FCA 739

Migration Act 1958 (Cth) ss 476(1)(a), 476(1)(b), 476(1)(c), 476(1)(g)

Rebchuk v Minister for Immigration and Multicultural Affairs [2001] FCA 716 referred to

VOLODYMYR REBCHUK v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1252 OF 2000

GYLES J

SYDNEY

18 JUNE 2001

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1252 OF 2000

BETWEEN: VOLODYMYR REBCHUK

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: GYLES J

DATE OF ORDER: 18 JUNE 2001

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant pay the costs of the respondent. 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 N 1252 OF 2000

BETWEEN: VOLODYMYR REBCHUK

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: GYLES J

DATE: 18 JUNE 2001

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The procedural history of the matter is set out in my judgment in Rebchuk v Minister for Immigration and Multicultural Affairs [2001] FCA 716. After I refused an application for an adjournment as set out there, the applicant elected to proceed to hearing forthwith. 2 The applicant is a citizen of the Ukraine, who arrived in Australia on 19 January 1999 on a visitor's visa. At the time of his arrival he was married, with a four-year-old son, his wife and son remaining in the Ukraine. On 4 March 1999 he made an application for a protection visa pursuant to the Migration Act 1958 (Cth) ("the Act"), which was refused by a delegate of the respondent on 26 March 1999. The applicant applied for review of that decision to the Refugee Review Tribunal ("the Tribunal"). The review before the Tribunal took place, including a hearing, following an invitation by the Tribunal to the applicant to appear pursuant to s 425A of the Act. The Tribunal gave its decision on 31 October 2000, affirming the decision of the delegate not to grant the visa. 3 As noted in my previous judgment, the application filed by the applicant before this Court simply refers to three subsections of s 476(1) – (a), (c) and, by implication, (g) of the Act. That remains the position as at the date of this judgment. At the hearing before the Tribunal, the applicant claimed that he feared persecution if he returned to the Ukraine because he is a Jew. He made general claims of discrimination against Jews in the Ukraine. So far as he was concerned, he said he had been called names at school and during his military service and initially claimed that, in 1998, land belonging to him had been confiscated on account of his Jewish background. He later added a claim that he had been severely beaten by the Ukrainian police when detained in order to inhibit his land acquisition. He relied upon three letters in support of his claim in relation to the confiscation of the land. 4 The conclusion of the Tribunal was as follows: "The Tribunal finds that the applicant was not a credible witness. It finds that he has expanded and embellished his story during the refugee determination process. It rejects his claim that he was detained and beaten by the Ukrainian police in November 1998 in connection with his land deals with the Ternopil city council. It rejects the claim that he has suffered harm – namely, having a land allocation withdrawn and being beaten by the police – because he is a Jew or is thought to be Jewish. The Tribunal is satisfied that the applicant has not suffered harm amounting to persecution in the past for a Convention reason. It is satisfied that the chance of such harm befalling him in the reasonably foreseeable future is remote. It follows that the Tribunal is not satisfied that the applicant has a well founded fear of persecution for a Convention reason." 5 On the way to that conclusion, the Tribunal (amongst other things) found that up until 1998 the applicant has suffered no problems worse than name-calling, which did not amount to harm that could be called persecution. It rejected the general claims of State endorsed persecution of Jews in the Ukraine as contrary to independent country information which the Tribunal accepted. The Tribunal did not accept the authenticity of one of the three documents produced by the applicant in support of his claim for land confiscation on religious grounds. 6 The applicant argued that the Tribunal had no proper basis for finding: (1) that the document was not authentic; (2) that there was no persecution of Jews in the Ukraine; (3) that he was not a Jew. He suggests that, in each case, the Tribunal indulged in speculation or supposition rather than acting upon proper material. 7 Counsel for the respondent, in my opinion correctly, perceived these points to be encompassed by the ground taken of s 276(1)(g). Counsel for the respondent submitted various arguments as to why this ground could not succeed, including some submissions of law. It is not necessary to deal with all of them. 8 The finding of the Tribunal about the lack of authenticity of the document was said to be for reasons it gave to the applicant at the hearing. The Tribunal's account of that was as follows: "The Tribunal asked where the documents (listed on page 5 above) that he had earlier presented to the Tribunal came from. He said that his wife had sent them out to him. That is, the documents were sent to him at his home address and then sent on to him in Australia by his wife. The Tribunal noted that the first two were in similar format but the third one was very different. It asked why the document was written by the Rural Council when his dealings, according to the two previous documents, were with the city council. The applicant replied that the third document related to a different case of land allocation. This one involved some land in a rural district outside Ternopil where he had hoped to build a house and a shop. This land allocation also failed, like the city one, because of reneging by the authorities caused by anti-semitism. The Tribunal put it to the applicant that the third document was not a genuine one, in contrast to the first two which did not appear to be out of order (given that only photocopies of the English translations were available to the Tribunal). It noted the non-parallel paragraphs, indicating a bad cut-and-paste job. It noted the content, referring to "the apparently complicated situation which took place between the Ukrainian and Jewish communities on religious grounds" and observed that it was implausible that an official would write in such a way. The applicant said the document was real: he had personally confronted the writer on the date given and challenged him to say that he (the applicant) was not getting his land because he was Jewish. The official rose to the challenge and wrote the document." 9 Later in its reasons, the Tribunal said: "The Tribunal notes the unsatisfactory history of claims presented by the applicant. His first claims related solely to persecution against him as a Jew, with the persecution being the withdrawal of a land allocation. Following the refusal of a protection visa at first instance, the applicant then had a letter faxed to him from Ternopil (the third document) stating a connection between the withdrawal of the land and "religious problems". When challenged about the validity of this document, he then said it related to another land allocation, not the one to which he had referred before and about which he had documentation (none of which supported his contentions of anti-semitism). He stated at hearing that he got this letter, the third document, by personally confronting the official (the writer). This confrontation occurred during a period of time when he claimed he was "lying low" and planning his escape from Ukraine, having suffered detention and beating. He claimed at hearing to have had many personal documents and all the papers relating to his land transactions and other business removed from his house by the police while he was in detention. Yet the two letters relating to the land allocation (referred to as the first two documents on page 5) survived the raid, as did his overseas passport, with which he had just been issued and which was, coincidentally and singly amongst his papers, at his mother-in-law's house." 10 Even if all of the legal difficulties inherent in the application of s 476(1)(g) and s 476(4) of the Act in these circumstances could be overcome, it is not possible to say that there was no evidence or other material to justify the finding of the Tribunal as to the authenticity of the document. The form of the document itself and the circumstances under which it came before the Tribunal are a proper basis for such a finding. 11 The refusal of the Tribunal to accept the claim that there was State endorsed persecution of Jews in the Ukraine was explicitly based upon identified country information. Section 476(1)(g) could have no application in those circumstances. I should say that the applicant claimed that the Tribunal had not taken account of material produced by him to it on this issue. However, counsel for the respondent pointed out the reference to this material in the reasons of the Tribunal. 12 The applicant's third point requires somewhat closer examination. Counsel for the respondent submits that there was no finding made by the Tribunal that the applicant was not Jewish. I agree. However, it did say the following: "Despite what appears to be a fairly accommodating State reaction to the resurgence of Judaism in Ukraine, the applicant himself appears to have made no effort to learn about the religion which he claims as his own. Nor has he made any effort to participate in Judaism in Australia, where there are no barriers, and where there are Russian-speaking congregations. In 21 months, he claims to have made one visit to a synagogue, blaming his lack of participation on his ill-health. The Tribunal notes that he did not become ill until six months after his arrival, and for some time past he has been in reasonable health and, indeed, has been working. The Tribunal notes that the applicant was aware of the right of Jews to go to Israel. It also notes that he rejected this option because he did not feel Israel was a particularly good destination: it was a "difficult country". This indicates that the applicant left Ukraine with the intention of finding a better place to live rather than to pursue any interest in Judaism. The Tribunal also notes that the applicant said, in considering the Israel option, that he could not prove he was a Jew. It follows that he had very little documentation relating to his Jewish family background and hence it makes it even more unlikely that he was considered to be Jewish within Ukraine." (emphasis added) 13 This refers back to what the Tribunal had earlier said as follows: "The Tribunal notes that the applicant's Jewish connection is based on the fact that he has a Jewish mother. While it is true that that people take their Judaism from their mothers, and are accepted as Jewish if they have Jewish mothers, the applicant's case is a little different. The applicant's mother married a non-Jew and chose not to bring her son up in the Jewish religious manner in order to save him from any "difficulties". She and her husband moved away from her home town when the applicant was a baby and established themselves in a new town some 140kms to the north. The applicant's mother did not attend synagogue in this new environment – indeed, there was not one – and did not conduct Jewish religious rituals in her home. The only clue to the applicant's Jewish connection was by word of mouth from any person who may have known the mother in her previous home town or from officials who may have sighted the applicant's personal papers in which his mother's nationality was described as Jewish. This was sometimes done in Soviet-era documentation." 14 When these statements are read in the light of the Tribunal's account of the claims and evidence, it is apparent that the Tribunal is saying that it would not be generally known in the Ukraine that the applicant was a Jew, but would only be known by those with some special knowledge as to his background. There was material upon which the Tribunal could come to that view. Furthermore, the finding which immediately followed the passage in question was as follows: "In short, the Tribunal rejects his claims that he left Ukraine because of religious persecution and a desire to be able to practice his religion freely." There was ample evidence and material to support that finding. 15 I therefore reject the bases put forward by the applicant for alleging a lack of proper evidence or material upon which the decision was based. The application is dismissed. The applicant is ordered to pay the costs of the respondent. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.