FEDERAL COURT OF AUSTRALIA Sergyeyeva v Minister for Immigration & Multicultural Affairs [2001] FCA 1670 MIGRATION – refugee – application for review of decision of Refugee Review Tribunal – claim by citizen of Ukraine of well-founded fear of persecution for reason of religion (Scientology) – Tribunal did not believe applicant's account of past persecution in certain respects – ground of review that there was no evidence or other material to justify Tribunal's state of non-satisfaction with applicant's account – whether Tribunal's state of non-satisfaction was based on existence of a particular fact which did not exist – whether error of law ground established in Tribunal's alleged failure to deal with claims touching her son's treatment by the authorities in Ukraine Migration Act 1958 (Cth) ss 476(1)(e), (g), 476(4)(b) Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 cited Minister for Immigration & Multicultural Affair v Indatissa [2001] FCA 181 cited Minister for Immigration & Multicultural Affairs v Al-Miahi [2001] FCA 744 cited Al-Asam v Minister for Immigration & Multicultural Affairs [2001] FCA 1361 cited Munkayilar v Minister for Immigration & Multicultural Affairs (1997) 49 ALD 588 followed Mijoljevic v Minister for Immigration & Multicultural Affairs [1999] FCA 834 followed Sunarso v Minister for Immigration & Multicultural Affairs (2000) 99 FCR 125 followed IRYNA SERGYEYEVA & ANOR v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS N 966 OF 2001 LINDGREN J 3 DECEMBER 2001 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 966 OF 2001 BETWEEN: IRYNA SERGYEYEVA AND SERGIY SERGYEYEV APPLICANTS AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGE: LINDGREN J DATE OF ORDER: 3 DECEMBER 2001 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application be dismissed. 2. The first-named applicant pay the respondent's costs. 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 966 OF 2001 BETWEEN: IRYNA SERGYEYEVA AND SERGIY SERGYEYEV APPLICANTS AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGE: LINDGREN J DATE: 3 DECEMBER 2001 PLACE: SYDNEY REASONS FOR JUDGMENT Introduction 1 Section 29 of the Migration Act 1958 (Cth) ("the Act") provided that subject to the Act, the respondent ("the Minister") might grant a non-citizen permission, to be known as a visa, to travel to and enter Australia or to remain in Australia or to do both. 2 The first-named applicant ("Ms Sergyeyeva") applies under s 476 of the Act for review of a decision of the Refugee Review Tribunal ("RRT") affirming a decision of the Minister's delegate ("the Delegate") not to grant her, her husband and her son, protection visas permitting them to remain in Australia. (I refer to the position of the second-named applicant at [8] below.) It is not in dispute that the Minister delegated all relevant powers to the Delegate pursuant to s 496 of the Act. 3 Section 65 of the Act provided that after considering a valid application for a visa, the Minister, if satisfied of the matters specified in the section, was to grant the visa, or, if not so satisfied, was not to grant the visa. The validity of Ms Sergyeyeva's application for the protection visa is not in question. One of the matters specified in s 65 was that the criteria for the visa prescribed by the Act or the regulations had been satisfied. Section 36 of the Act provided that a criterion for the grant of a protection visa was that the applicant for it was a non-citizen in Australia to whom Australia had protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951, as "amended" by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 (compendiously, "the Convention"). Australia is a party to the Convention. 4 Article 1A(2) of the Convention provides that a refugee is any person who: "... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; ..." 5 Criteria to be satisfied by an applicant for a protection visa at the time of the decision on the application also included the criterion specified in cl 866.221 of Schedule 2 to the Migration Regulations 1994, which was that the Minister was satisfied that the applicant was a person to whom Australia had protection obligations under the Convention. 6 The RRT's decision was a "judicially-reviewable decision" (par 475(1)(b) of the Act); Ms Sergyeyeva was entitled to apply to this Court for review of it on certain grounds (s 476); and the Court had the jurisdiction provided by Part 8 of the Act (or by s 44 of the Judiciary Act 1903 (Cth)), but no other jurisdiction, with respect to it (ss 485, 486). 7 Ms Sergyeyeva's case was that she was outside the country of her nationality, Ukraine, and was unwilling to return to it because of a well-founded fear of being persecuted for reason of religion. Procedural background 8 Ms Sergyeyeva and her son (a minor who was born on 13 November 1984) and co-applicant in this proceeding, Sergiy Sergyeyev (Junior), to whom I will, without any intended discourtesy, refer as "Sergiy", arrived in Australia on 3 November 1999. Her husband, Sergiy Sergyeyev (Senior) had previously arrived on 6 January 1999. 9 On 28 March 2000 Ms Sergyeyeva lodged an application dated 15 March 2000 for a protection visa (a Subclass 866 (Protection) visa). Also on 28 March 2000 her husband and Sergiy each lodged an application dated 15 March 2000 as "a member of the family unit". 10 The Delegate refused the applications on 12 July 2000. By letter of that date the Delegate advised Ms Sergyeyeva of the refusal. The letter also advised her that her husband and son who had been included in her application "but had no claims of their own to be a refugee" had been refused protection visas also. On 11 August 2000 Ms Sergyeyeva, her husband and Sergiy lodged with the RRT an application for review of the Delegate's decision. On 15 May 2001 the RRT decided to affirm the Delegate's decision. The RRT handed down that decision on 1 June 2001. On 21 June 2001 Ms Sergyeyeva and Sergiy filed in this Court the present application for review of the RRT's decision. The reasons for decision of the RRT 11 The RRT commenced its reasons for decision by referring to the procedural background, the legislative framework and the law relating to the Convention definition of a "refugee". When turning to the "Claims and Evidence" before it, the RRT observed that Ms Sergyeyeva, alone of the applicants before it, had made specific claims under the Convention. Accordingly, the RRT referred to her as "the applicant". 12 The RRT had before it the Department's file, which included Ms Sergyeyeva's protection visa application and a written submission dated 27 April 2000 in support of that application. As well, the RRT had before it written submissions in support of the application for review. Finally, Ms Sergyeyeva had given oral evidence to the RRT on 15 December 2000. 13 In her protection visa application Ms Sergyeyeva claimed to have left Ukraine because she feared persecution for reason of her religion, Scientology. Her application alleged that: · she "was arbitrarily detained twice"; · her "religious literature was confiscated"; · her son was beaten up by policemen when he attempted to protect her; · she was threatened on many occasions by "municipal officers and policemen" with imprisonment or with having her son put into a "special penitentiary place for delinquents" for "re-upbringing"; and · she was "taken to a psychiatric hospital for [a] forcible check up". She claimed further in her application that she had no protection in Ukraine as the authorities themselves were the "instigators" of her persecution. 14 In a submission dated 27 April 2000 by her adviser, Dr R Hudson of Immigration & Refugee Specialists Pty Ltd, Ms Sergyeyeva referred to several instances of police acts directed against her and her friends in late 1997 and at various times in 1998. Of particular relevance for present purposes are the claims made in relation to Sergiy. Ms Sergyeyeva claimed that at around November 1998, Sergiy, who was at school, was insulted by his teachers and "often attacked and beaten" by other students for his support of Scientology, and that, in that month, he spent two weeks in hospital with concussion after a beating he received at school from his fellow students. She claimed further that: · in February 1999 Sergiy was badly beaten again; · she complained to the police and the school principal but they took no interest in the case; · Sergiy was beaten up several more times; and · in March 1999 Sergiy ceased attending school. 15 Ms Sergyeyeva claimed that in May 1999 she was summoned to the police station where she was told she was neglecting her son by not allowing him to attend school. She said the police threatened that she would be charged under Art 209 of the Ukrainian Criminal Code (which made punishable with up to five years' imprisonment "[o]rganising or controlling a group whose activities, conducted under the pretext of preaching religious faiths or conducting religious rituals, involve causing damage to people's health or involve sexual dissoluteness" and that Sergiy would be sent to a corrective institution. She said she began to cry and begged to be allowed to telephone her son, but the police officers pulled her hair, forced her to strip and raped her. She said she was taken to a psychiatric institution later in the day and forced to undergo interrogation and a check up by a doctor. 16 According to her claim, upon returning home she found her home had been ransacked and her books taken. Her mother told her that the police had done this and had told the mother that she should get rid of Ms Sergyeyeva or her "sectarian nest" would be liquidated. 17 Finally, Ms Sergyeyeva claimed she went to Moscow with her son but was not able to remain there long and returned to Ukraine to live with her in-laws in Uzshny. It was from there that she arranged her travel to Australia. She claimed she had to pay a bribe in order for Sergiy to be permitted to leave the country. 18 At the hearing on 15 December 2000, Ms Sergyeyeva reiterated some of her claims and elaborated on them in response to questions by the RRT. 19 The RRT also had independent material before it, much of which related to the official treatment of religious groups in Ukraine. 20 The RRT accepted some of Ms Sergyeyeva's claims and rejected others. It accepted that Sergiy may have met with rough treatment in the school yard and may have been concussed at some point. But it was not satisfied that the motivation for any harm he had suffered was attributable to his or his mother's religious convictions. The RRT stated: "There is no evidence before the Tribunal to support the claim by the applicant at the hearing that his teachers incited other students to beat him because of ideas espoused by him. The general conclusion from the documentation presented about the applicant son is that he did suffer from some condition which may or may not have been related to physical beatings and the Tribunal accepts that he did not attend school after his hospitalisation in March 1999. The Tribunal is not satisfied that the motivation for any harm to which the applicant son has come to derives from the applicant's religious convictions." 21 The RRT found it "eminently plausible" that Ms Sergyeyeva had been summoned to the police station in May 1999 to explain why her son had not attended school since March. However, the RRT did not accept her claim that she had been raped, or her claim that she was taken to a psychiatric institution, or that her home had been ransacked. 22 The RRT accepted that Ms Sergyeyeva was a member of the Church of Scientology and found that members of that Church may meet with occasional harassment. However, it said there was no evidence that they were prevented from practising their religion. Accordingly, the RRT concluded that there was no real chance that Ms Sergyeyeva would be persecuted for belonging to her Church if she should return to Ukraine. 23 The RRT concluded in relation to the husband and Sergiy as follows: "No specific Convention claims were made by or on behalf of the applicant's husband; the claims involving the applicant's son have been dealt with above. There is no basis on which the Tribunal can be satisfied that the applicant husband and son are refugees. The fate of their application therefore depends on the outcome of the applicant's application. As the Tribunal has found that the applicant does not satisfy the criteria for a protection visa, it follows that her husband and child cannot be granted a protection visa." MY Reasoning 24 On the hearing before me, Ms Sergyeyeva pressed two grounds of review propounded in her amended application for an order of review filed on 19 September 2001. One of these was that the RRT's finding that it was not satisfied that the motivation for any harm to Sergiy had derived from Ms Sergyeyeva's religious convictions was based on the existence of particular facts that did not exist. I will refer to this as the "no evidence" ground. Subsections 476(1) and (4) of the Act provided, relevantly, as follows: "(1) ... application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds: ... (g) that there was no evidence or other material to justify the making of the decision. (2) ... (3) ... (4) The ground specified in paragraph (1)(g) is not to be taken to have been made out unless: (a) ... (b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist." 25 The other ground pressed was the "error of law" ground set out in par 476(1)(e) of the Act as follows: "that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision; ..." The error of law ground was said to consist of a failure to consider claims made relating to Sergiy. The no evidence ground 26 Ms Sergyeyeva faces considerable difficulty in establishing this ground. The ground is that there was no evidence or other material to justify the making of the decision by the RRT affirming the decision of the Delegate not to grant the protection visas. The RRT so decided because it was "not satisfied that [Ms Sergyeyeva was] a person to whom Australia ha[d] protection obligations under the ... Convention". Ms Sergyeyeva's submission must be, and is, in fact, that the RRT's state of non-satisfaction was based on the existence of a particular fact which did not exist (and that there was no evidence or other material to justify its state of non-satisfaction). 27 As stated above, the RRT did not accept many claims made by Ms Sergyeyeva and found that other claims made by her did not amount to claims of persecution. For example, the RRT did not accept a claim that in May 1998 Ms Sergyeyeva began to hold gatherings in her own home and it did not accept that she was detained in October 1998 (the RRT found these claims to be "embellishments of her claims"). The RRT accepted that a factory, "Zentrelit", which was making machinery for military and agricultural use had "warned off" Ms Sergyeyeva and her friend but was not satisfied that its motivation was the religious nature of the activities in which they were engaged. Again, the RRT considered that remonstrance by employers when Ms Sergyeyeva visited factories and asked employees to undertake personality tests, was perfectly understandable and did not contribute to showing persecution. 28 The RRT also referred to the absence of evidence that members of the Church of Scientology are persecuted in Ukraine, and to independent country information that "there is indication of some harassment but not of the severity that would constitute Convention persecution". 29 The RRT considered that a certain undated letter had been produced with the express aim of bolstering Ms Sergyeyeva's claims and did not accept that it was "a piece of communication which reflects the truth". The RRT had a similar view of a letter written for Ms Sergyeyeva's mother by "Aunt Tasia". 30 Notwithstanding all the matters mentioned above suggesting that the RRT might not be satisfied that Ms Sergyeyeva had a well-founded fear of persecution for reasons of religion, Ms Sergyeyeva's submission is that its state of "non-satisfaction" was based on the following "particular facts" which did not exist: (a) The fact that Ms Sergyeyeva indicated at the hearing that Sergiy was beaten "much more often than claimed"; (b) The fact that a certain medical certificate dated 23 June 1999 provided in support of claims made relating to Sergiy was not a medical certificate; (c) The fact that there was no evidence to support the claim that Sergiy's teachers incited students to beat him because of the ideas espoused by him. The submissions made by counsel for Ms Sergyeyeva referred to particular facts (a) and (c) above but not (b). The RRT stated that it had transpired that the "medical certificate" dated 23 June 1999 was "not an actual medical certificate but a medical history of the applicant's son taken at school". There was no attempt before me to establish that this characterisation was incorrect and I will say no more of particular fact (b). 31 The parties are agreed that the relevant principles governing the no evidence ground are those expounded in: Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 at 221; Minister for Immigration & Multicultural Affair v Indatissa [2001] FCA 181 (FC) at [26]-[32]; Minister for Immigration & Multicultural Affairs v Al-Miahi [2001] FCA 744 (FC) at [34]-[40]; and Al-Asam v Minister for Immigration & Multicultural Affairs [2001] FCA 1361 (FC) at [40]-[41]. 32 It suffices to dispose of the no evidence ground to state my conclusion that, if I assume that particular facts (a) and (c) did not exist, nonetheless it is clear to my mind that the RRT did not base its state of non-satisfaction on the existence of those particular facts and that there was evidence and other material to justify that state of non-satisfaction. 33 For this reason alone, the first ground of application fails. Nevertheless, I will turn now to the two particular facts relied upon. (a) The fact that Ms Sergyeyeva indicated at the hearing that Sergiy was beaten "much more often than claimed" 34 Ms Sergyeyeva complains of the following sentence in the RRT's reasons for decision: "The applicant indicated at the hearing that her son was beaten much more often than claimed ..." 35 Ms Sergyeyeva submits that this statement was incorrect. In her application lodged 28 March 2000 for the protection visa, she stated that she was arbitrarily detained twice and her son was beaten up by policemen when he tried to protect her. In the written submission dated 27 April 2000 by her adviser it was stated, in the context of Sergiy's experiences at school: · "[H]e was often attacked and beaten by other students" and on one occasion (November 1988) he suffered concussion as a result and had to spend two weeks in hospital; · "Again in February 1999 he was attacked by other students and badly beaten"; and · "After this, Sergiy was beaten up several more times, and so in March 1999 he ceased attending school". 36 At the hearing before the RRT, the presiding Member put to Ms Sergyeyeva that her claim was that her son had been beaten up three times, to which she replied: "Not three (3) times; on many occasions ..." She went on to say that the first beating took place on Sergiy's 14th birthday on 13 November 1998. 37 The Minister submits that the RRT's statement was correct because it was comparing the claims made at the hearing with those made in the original form of application for a visa. In favour of this view, he points out that the RRT, at an earlier point in its reasons for decision, summarised accurately the claims Ms Sergyeyeva had made, not only in her application for the visa, but also in the submission dated 27 April 2000. But I see no reason to read the passage in the manner suggested by the Minister. By the expression "much more often than claimed", the RRT surely meant "much more often than claimed prior to the hearing". After all, there would be little point in confining attention to the claims she had made in her application for the visa and not taking into account claims made only one month and twelve days later in her adviser's submission. 38 Accordingly, I accept Ms Sergyeyeva's submission that the RRT erred in fact when it said that she indicated at the hearing that her son was beaten "much more often than claimed". (c) The fact that there was no evidence to support the claim that Sergiy's teachers incited students to beat him because of the ideas espoused by him 39 Ms Sergyeyeva complains of the following passage in the RRT's reasons for decision: "There is no evidence before the Tribunal to support the claim by the applicant at the hearing that [Sergiy's] teachers incited other students to beat him because of ideas espoused by him." 40 Ms Sergyeyeva submits that this statement was incorrect because there was before the RRT her own evidence in the form of her adviser's submission dated 27 April 2000 and her oral evidence given at the hearing on 15 December 2000. In both places, Ms Sergyeyeva had claimed that teachers, by things they said, created an environment and atmosphere in which other pupils understood that if they beat Sergiy, they would be unlikely to be punished (and in fact they were not punished). 41 The Minister submits that there is nothing to suggest that the RRT laboured under the misapprehension that Ms Sergyeyeva's claims were not themselves "evidence before the Tribunal" that required corroboration before it be said that any evidence existed. 42 I accept the Minister's submission. The RRT meant that there was no independent evidence before it: the RRT well knew that Ms Sergyeyeva's account of the acquiescence of the teachers was evidence before it and that this had to be taken into account by it. The RRT was merely making the correct factual observation that there was no direct independent evidence of what had happened in the classroom or otherwise at Sergiy's school. 43 But, if I am wrong as to particular fact (c), and in any event as to particular fact (a), the RRT's decision and its state of non-satisfaction were not based on those particular facts and there was ample other evidence and material, referred to by the RRT, to justify its decision and state of non-satisfaction. The error of law ground 44 Ms Sergyeyeva submits that the RRT erred in law by failing to consider two claims she made: (a) That the State (in the form of the school principal and the police) failed or refused to protect Sergiy from beatings and that their failure or refusal to do so was for a Convention reason, namely, Sergiy's religious beliefs; (b) That Sergiy was targeted because of his own religious convictions, as distinct from those of his mother. 45 In relation to the latter, it may be noted that the RRT said it was "not satisfied that the motivation for any harm [to Sergiy] derive[d] from the applicant's religious convictions" (my emphasis). 46 Ms Sergyeyeva also submits that the RRT erred in law by not accepting her own testimony as some evidence of what happened to Sergiy at school, but I have previously indicated that I do not think the RRT committed that error. 47 In relation to both (a) and (b) above, I accept the Minister's submission that it was not necessary for the RRT to address these claims because Ms Sergyeyeva was the applicant who made a claim to meet the Convention definition of a "refugee" and Sergiy did not make his own claim to do so: cf the construction of cll 866.21 and 866.22 of Schedule 2 to the Migration Regulations 1994 in Munkayilar v Minister for Immigration & Multicultural Affairs (1997) 49 ALD 588 (Beaumont J) at 592-593; Mijoljevic v Minister for Immigration & Multicultural Affairs [1999] FCA 834 (Branson J) at [15]-[17]; Sunarso v Minister for Immigration & Multicultural Affairs (2000) 99 FCR 125 (Katz J) at [59]-[60]. 48 In relation to (a), the RRT did refer to the significance of the availability of State protection and impliedly found that it was available to Sergiy. 49 In relation to (b), the RRT impliedly concluded that it was not satisfied that Sergiy was targeted because of his own religious beliefs. In its reasons for decision, the RRT did refer twice to Sergiy's religious beliefs. Moreover, given the fact that the claim was that Sergiy's religious convictions were the same as those of his mother, the finding that he was not persecuted for reason of his mother's religious convictions was tantamount to a finding that he was not persecuted for reason of his own. Conclusion 50 For the above reasons the application should be dismissed with costs to be paid by the first-named applicant. I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren. Associate: Dated: 3 December 2001 Counsel for the Applicant: Mr N C Poynder Counsel for the Respondent: Mr G T Johnson Solicitors for the Respondent: Australian Government Solicitor Date of Hearing: 2 November 2001 Date of Judgment: 3 December 2001