SZBAK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 156

FEDERAL COURT OF AUSTRALIA

SZBAK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 156

MIGRATION – no issue of principle involved

Judiciary Act 1939 (Cth) s 39B Migration Act 1958 (Cth) s 424A, 476 Migration Legislation Amendment (Judicial Review) Act 2001 (Cth)

Vassilieva v Minister for Immigration & Multicultural Affairs [2001] FCA 733 cited Aksahin v Minister for Immigration & Multicultural Affairs [2000] FCA 1570 cited SZBAK v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 1383 OF 2004 CONTI J 1 MARCH 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY 1383 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZBAK

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: CONTI J

DATE OF ORDER: 1 MARCH 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed.

2. The appellant 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 1383 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZBAK

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: CONTI J

DATE: 1 MARCH 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT

The Tribunal's and the Federal Magistrate's decisions below 1 The appellant has provided to the Court a substantial amount of material, including material impermissibly sent to the Court subsequent to the hearing. Nevertheless I have considered all of that material, much of it repetitive in substance. This is an appeal from the decision of Federal Magistrate Barnes made and given on 7 September 2004, whereby her Honour dismissed the appellant's application purportedly brought pursuant to s 39B of the Judiciary Act 1939 (Cth) for review of the decision of the Refugee Review Tribunal ('the Tribunal') made on 1 July 2003. The Tribunal decision affirmed the decision of the Minister's delegate made on 26 June 2001 not to grant the appellant a protection visa. As to background facts and circumstances to the present litigation, it is convenient to extract paragraphs [2] and [3] of Barnes FM's reasons for judgment: '[2] The applicant claimed to fear persecution in the Ukraine for reason of his religion as a member of the Salvation Army. He claimed that he was beaten in April and May or June 2000 because of his involvement with the Salvation Army, a minority religion in Ukraine, and that although he reported the attack to the police nothing was done. He also claimed that when he received call-up papers for compulsory military service in April 2000 he sought an alternative to military service because of his religious beliefs and that this was refused by the interviewing army officer. He stated that he considered the Ukrainian army to be evil and amoral and was strongly opposed to conscription because of his religious beliefs. He claimed that he had consulted a member of the Salvation Army who told him that the Salvation Army leaves it to its members to decide for themselves whether to undertake compulsory military service. He claimed that according to the Ukrainian Constitution he was entitled to undertake an alternative form of service because he is a member of a religious group but that his application to carry out an alternative to military service had been refused. He claimed that a few days after an interview with the recruiting officer he was assaulted in the street not far from his home and he considered that this was because of his refusal to serve in the army. At the end of May 2000 a military officer together with police and soldiers came to his home one evening when he was not there. The purpose of that visit is unclear. Because of that visit he had left home and work. He had applied to the regional court on 22 May 2000 with respect to what he believed was his right to an alternative to military service. In July 2000 the regional court rejected his application to be permitted to undertake an alternative to military service. He decided he had to leave Ukraine. [3] The applicant claimed that he did not intend to apply for a protection visa when he first arrived in Australia as he hoped further efforts by his mother to resolve the matter in Ukraine would be successful. He now believes the army would seek to punish him at all costs because he resisted military authorities and that he will be imprisoned for up to three years for refusing to undertake his military service…' 2 The appellant's migration agent made post-hearing written submissions to the Tribunal by letter dated 21 April 2003. These submissions purported to provide the Tribunal member with additional information in relation to a number of issues allegedly raised at the hearing. The first issue identified in the letter was '[the Tribunal's] assertion that the Salvation Army allows its members to serve in armies and does not oppose its members to be involved in war conflicts.' The agent asserted that the Ukrainian army was engaged in 'suppression and persecution' rather than the defence of Ukrainian people and that in those circumstances, military service was not consistent with the Salvation Army's 'doctrines'. The letter went on to refer to numerous 'independent' sources of information by which the agent sought to establish that the army engages in human rights abuses in Ukraine, against both Ukrainian citizens and conscripted members of the armed forces. The second issue that the letter sought to answer related to the appellant's application to the Regional Court in Ukraine by which he sought to enforce an alleged right under the Ukraine Constitution to engage in an alternative to military service. The agent provided more 'independent' information about the apparent absence of independence of the Ukrainian judiciary as well as to persons who were eligible for 'alternative service' owing to their status as members of minority religions, but who were nevertheless imprisoned by the Ukrainian government. Finally (and most significantly for the purposes of this appeal), the agent referred to a decision of the Tribunal made on the 6 February 2001 and handed down on the 27 February 2001 (N99/28142). In this decision, Member Keher found that the applicant, a Ukrainian who belonged to one of the minority religions recognised by Ukrainian law, was a person to whom Australia owed protection obligations under the Refugees Convention. It has always been accepted that the Salvation Army is not one of those minority religions recognised by Ukrainian law such that its participants are eligible for 'alternative service'. 3 The Tribunal made its decision on 2 June 2003 and handed it down on 1 July 2003. The Tribunal member engaged in a lengthy consideration of the merits of the appellant's application for a protection visa and made a number of findings which were summarised by her Honour Barnes FM in paragraphs [4] to [10] of her judgment, and which may be conveniently reproduced as follows: '[4] The Tribunal did not accept that the applicant had ever been a member of the Salvation Army. This finding was based on the limited extent of the work that the applicant claimed to have carried out for the Salvation Army in the Ukraine; his failure to produce material to confirm his membership of the Salvation Army or to contradict the finding by the delegate of the respondent that the Salvation Army did not oppose military service in the Ukraine and his failure to join the Salvation Army in Australia. Nor was the Tribunal satisfied that the applicant was attacked because of involvement with the Salvation Army, a minority religion in Ukraine, or that he had been bashed as a "sectarian". The Tribunal was unable to find any evidence of mistreatment of Salvation Army workers in the Ukraine. It accepted independent evidence that the Salvation Army operated in Ukraine without interference from the authorities. [5] The Tribunal considered the applicant's claim that he was first bashed in the apartment building in which he lived. Nothing was said to him in the course of the attack and nothing was stolen from him by two men who had been waiting for him. The Tribunal found that the applicant had produced no evidence that satisfied it that this was anything other than a random criminal assault. There was no evidence that satisfied it that he was attacked because of involvement with the Salvation Army. The Tribunal also considered the second occasion on which the applicant claimed to have been attacked (which at the hearing he said was in early May 2000 when he was on his way home after shopping locally). Again the Tribunal saw nothing in the evidence of the applicant to satisfy it that this was other than a random criminal assault. Although the applicant claimed that the word "sectarian" was used by one of the attackers, the Tribunal found that this may have been because the applicant mentioned that he was a non-smoker and sportsman rather than because of any suspected involvement of the applicant with the Salvation Army. The applicant wore no Salvation Army uniform, did not attend Salvation Army services and claimed to be a member of a very small group of Salvation Army members in his area who engaged in no more than charitable work. The applicant himself had conceded that he did not believe the assaults on him had been carried out by or at the behest of the military authorities. The Tribunal was not satisfied on the evidence before it that either of the assaults were for reason of his involvement with the Salvation Army. [6] The Tribunal also considered the applicant's claim that he had a conscientious objection to serving in the army because of his religious beliefs. It did not accept that such person would join the Salvation Army, as the applicant's evidence as to the Army's views about conscientious objection indicated that it did not oppose its members undertaking military service. The Tribunal also had regard to independent information about the involvement of the Salvation Army in service to the defence forces of the countries in which it operated. It did not accept that the Salvation Army in the Ukraine would be out of step with its parent organisation in the United Kingdom. [7] The Tribunal accepted the applicant's evidence that he did not wish to serve in the Ukrainian army and that the Ukrainian Constitution provided for alternative service for those for whom performance of military service was contrary to their beliefs, that the right to such alternative service was limited to listed religious denominations and that those persons of denominations not covered by that decree were not entitled to alternative service and must undertake military service. The Tribunal was not able to satisfy itself that the Salvation Army was a registered religion in the Ukraine. It accepted that the effect of the Ukrainian legislation was that the applicant was required to undertake military service in Ukraine. The Tribunal was prepared to accept that the effect of the current legislation was to discriminate against members of minority and unregistered religions but was not satisfied that this amounted to serious harm within s 91R of the Migration Act 1958. The Tribunal had regard to the fact that the applicant had unsuccessfully applied to the local court for an exemption from military service. However having regard to the Tribunal's understanding of the policy of the Salvation Army (that it is not opposed to military service) the Tribunal was not satisfied that the applicant had a genuine religious conviction which would entitle him to an exemption from military service, or a valid reason to seek an alternative to military service. [8] The Tribunal acknowledged that it may be that on return to Ukraine the applicant would be prosecuted by the Ukrainian authorities and required to complete his military service. The Tribunal did not accept that his personal perceptions of the army were a valid reason to avoid his service obligations. It was satisfied that any action taken against the applicant in this respect would not be for a Convention reason. The Tribunal was satisfied that the applicant faced prosecution not persecution. [9] The Tribunal stated that it was fortified in the view it had taken of the applicant's claims by his conduct on arrival in Australia. It had regard to the applicant's 5 month delay in lodging an application for a protection visa, considered his explanation and concluded that such delay was inconsistent with the actions to be reasonably expected of a person who had fled his homeland because of a fear of Convention-based persecution. [10] The Tribunal concluded that for all the above reasons it was not satisfied that, looked at individually or cumulatively the sum of the applicant's past experiences amounted to serious harm constituting persecution for any Convention reason. The Tribunal was not satisfied that the harm the applicant feared from undertaking military service was for any Convention reason or that the applicant faced a real chance of Convention-related persecution upon his return to Ukraine. His claimed fear of Convention-based persecution was said not to be well founded. The Tribunal concluded that he was not a refugee.' 4 The applicant had sought review of the Tribunal's decision by application filed in the Federal Magistrates Court on 28 July 2003. The application raised four grounds for review which were reproduced in the judgment of Barnes FM in paragraph [12], and which may be conveniently again reproduced: '1. The Tribunal can not dismiss the applicant's key claims, eg the claim he has been a member of the Salvation Army are subject to harm in the Ukraine and etc. simply due to 'lack of documentary evidence'. The fact that the applicant has been unable to provide the Tribunal with documentary evidence does not indicate the applicant is not a refugee. 2. Given the Tribunal's lack of expertise regarding the Salvation Army's religious doctrines, one would have expected the Tribunal, before making specific claims upon which the decision is made, to seek expert advice from either a local branch of the Salvation Army or from any other relevant institution. In the present case the Tribunal's decision is based on its assertion (which is totally illogical and wrong) that the Salvation Army in the Ukraine does not oppose its members undertaking military service. 3. The Tribunal ignored relevant country report information, which was consistent with the applicant's case. 4. The Tribunal ignored its own decision of 27/02/2001 (N99/28142), where the mentioned issues were raised and resolved.' Her Honour addressed seriatim each of these four purported grounds for review, which I have summarised, or else have conveniently extracted, below. 5 In relation to the first purported ground, Barnes FM observed that the Tribunal did not find that the appellant had been a member of the Salvation Army whilst in Ukraine. Its finding was set out in paragraph [91] of its decision, which I now reproduce: 'The next issue is whether the Applicant was a member of the Salvation Army in Ukraine. The only work the Applicant claimed to have carried out for the Salvation Army in Ukraine is some sporadic charity work. Notwithstanding comments of the delegate [in the original decision] that the Salvation Army does not oppose military service in Ukraine, nearly two years later the Applicant has not produced any independent evidence to substantiate either his membership of the Salvation Army in Ukraine or its attitude in Ukraine to military service. Significantly, in my view, the Applicant conceded that he had not joined the Salvation Army in Australia. I am not satisfied that the Applicant has ever been a member of the Salvation Army.' 6 Barnes FM thus accepted the Tribunal's finding that the appellant was not a member of the Salvation Army in Ukraine, notwithstanding, I should at once record, that the Minister's delegate had earlier come to the contrary view. Her Honour identified the bases for this finding as being the limited involvement of the appellant with the Salvation Army in Ukraine, the fact that he had not joined the Salvation Army in Australia, as well as the fact that he had not produced any independent evidence to substantiate either his membership of the Salvation Army in the Ukraine or the Army's attitude in the Ukraine to military service. There is something to be said for the view that the appellant should not have been expected to provide to the Tribunal independent evidence verifying his membership of the Salvation Army, given that there was nothing before the appellant at the pre-hearing stage to suggest that this aspect of the delegate's findings would be overturned. In any event, whether or not the appellant was or was not a member of the Salvation Army in Ukraine is not material to the outcome of this appeal, since the Tribunal identified additional bases for reaching the conclusion that it did, and which I will discuss more fully below. 7 In relation to the appellant's second purported ground for review, Barnes FM recorded that the appellant challenged findings of fact made by the Tribunal (in particular, that the Salvation Army in Ukraine was not opposed to its members participating in military service), and in so doing, did not commit any jurisdictional error. I repeat her Honour's reasons for dismissing that ground of review, since they have compelling significance to the present appeal: '[13] … There is nothing in the material before me to suggest that the Tribunal undertook to make any further inquiries or that this was a case in which it was necessary for it to do so. It is for the applicant to establish his case. The applicant was aware from the decision of the delegate, of independent information indicating that the Salvation Army does not shun military service but respects the right of individuals to arrive at their own decision. Indeed the applicant indicated to the Tribunal that this was his understanding of the advice he had received from a friend about the attitude of the Salvation Army in Ukraine. In these circumstances there was no obligation on the Tribunal to seek expert advice from a local branch of the Salvation Army or from any other relevant institution. This is not one of those rare cases where it can be said that it was obvious that material centrally relevant to the decision was readily available such that the failure of the Tribunal to make its own inquiries amounted to jurisdictional error (cf Prasad v MIEA (1985) 6 FCR 155). There was no obvious omission or obscurity which needed to be resolved before the decision was made. No jurisdictional error is established in this respect.'