FEDERAL COURT OF AUSTRALIA

Soboleva v Minister for Immigration & Multicultural Affairs [2001] FCA 528

migration law – application for review of decision of Refugee Review Tribunal – applicants allege Tribunal’s findings inconsistent with findings in earlier decisions – whether Tribunal bound to follow earlier decisions – whether Tribunal bound to address alleged inconsistency in its reasons for decision – when a party refers to and relies on findings in a previous decision.

Migration Act 1958 (Cth) ss 430 & 476

Ibrahim v Minister for Immigration & Multicultural Affairs [2000] FCA 351

Minister for Immigration and Multicultural Affairs v Singh (2000)98 FCR 469

Sellamuthu v Minister for Immigration & Multicultural Affairs (1999) 90 FCR 287 cited

Witharana v Minister for Immigration & Multicultural Affairs (Unreported, Federal Court, Wilcox J, 21 December 1998) cited

SOBOLEVA & ORS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1205 of 2000

MOORE J

8 MAY 2001

SYDNEY

THE COURT ORDERS THAT:

1.         The application is dismissed.

2.         The applicants pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

Introduction

1                     This is an application by Tatiana Soboleva, her husband Serguei Sobolev and their son Vadim Sobolev (“the applicants”) for judicial review of two decisions of the Refugee Review Tribunal (“the Tribunal”). Both decisions were given on 29 September 2000 (one relating to the first applicant and the other to the second and third applicants) and the Tribunal published separate reasons for each decision.  In both cases the Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs (“the Minister”), refusing to grant the applicants protection visas.  The criterion for the grant of such a visa is that the applicant is a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees of 28 July 1951 as amended by the Protocol Relating to the Status of Refugees of 31 January 1967 (“the Convention”).

Background

2                     The applicants are citizens of the Russian Federation.  The first applicant arrived in Australia on 20 October 1998 and on 24 November 1998 lodged an application with the Department of Immigration and Multicultural Affairs for a protection visa under the Migration Act 1958 (Cth) (“the Act”).  On 19 March 1999 a delegate of the Minister refused to grant a protection visa and on 19 April 1999 the first applicant applied to the Tribunal for review of that decision.

3                     The second and third applicants arrived in Australia on 25 February 1999 and on 9 April 1999 lodged an application with the Department for a protection visa.  On 23 April 1999 a delegate of the Minister refused to grant a protection visa and on 18 May 1999 the second and third applicants applied to the Tribunal for review of that decision.  All three applicants have now applied to this Court for judicial review of the Tribunal’s decisions.

The Tribunal’s reasons

4                     The reasons for decision of the Tribunal in each matter commenced with a discussion of the relevant legislation and what is comprehended by the definition of “refugee” and by the notion of “persecution”.  Reference was made to the judgments of the High Court in Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379, Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225 and Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559.  In a section in each decision headed “Claims and Evidence”, the Tribunal summarised the claims made by the applicants in their applications for a protection visa, written submissions in support of the applications as well as written submissions in support of the applications for review, and oral evidence given to the Tribunal on 20 July 2000.  In relation to the first applicant the Tribunal also had before it a record of interview conducted by an officer of the Department.

5                     The Tribunal’s account of the first applicant’s claims began in 1994, when she was a married woman living in St Petersburg.  At that time she and her husband conducted a retail business in a market.  In August 1997, after being approached on the street by Jehovah’s Witnesses who spoke to her about their religion and provided her with literature to read, she began participating in meetings.  It was after one such meeting in November 1997, when she and three others were leaving the area where the meeting had taken place, that they were the victims of an unprovoked attack by some young men passing by in a car.  The attack took place on a night that was cold and dark and heavy winter clothing made identification of their attackers difficult.  The incident also happened very quickly, but left the applicant unharmed and resulted in no action being taken to report the matter to the police.

6                     On her arrival home afterwards she told her husband what had taken place.  As he did not approve of her involvement with the Jehovah’s Witnesses, he was unsympathetic.  They argued and he ordered her not to continue attending the meetings.  She disobeyed and invented excuses for continuing to do so.  In February 1998, after returning from a meeting she was violently assaulted by her husband, with the result that the police were called.  After speaking first with her husband they took a statement from her but told her that everything would be all right if she stopped associating with “the sectarians”.  She continued to be insulted and assaulted by her husband and the relationship deteriorated.  However she was sustained by her religious belief and endeavoured to remain away from the family home as much as possible.  On one occasion a relative of her husband visited with the intent of turning her against the organisation by allegations of immoral and unethical conduct by the Jehovah’s Witnesses, but she was not swayed.  She offered her husband a divorce.

7                     In about April 1998, her husband arranged for a second door to be installed in their flat so that he was able to lock her inside when he went to work.  Her response to his actions was to leave home.  When an opportunity presented itself she made her escape and took refuge with a female friend.  This arrangement continued for a few months, during which she applied for her passport to enable her to travel to Finland with her friend.  The purpose of the trip was to purchase goods in Finland that they could sell at the market in St Petersburg to earn some money.  While at the market, and selling the goods, she was approached and questioned by the police about the absence of price labels.  She claims that the harassment from the police was instigated by her husband’s request to his police friends to do so, stating that when he came to collect her from the police station the police told her husband “to knock the sense out from her”.  On returning home with her husband they argued again about her association with the Jehovah’s Witnesses and he then assaulted her.

8                     Some days after this incident the first applicant took her son and left the family home, travelling to the Black Sea area.  On arriving at a town she advised the local Executive Committee of her circumstances and requested residence.  However she was visited by the police that evening and told to leave as they did not want the local residents to be “caught up in her sectarian nets”.  She then moved to another town, took private lodgings and did not inform authorities of her presence, intending to stay illegally.  In late August 1998, though, her husband and an unidentified person arrived at her place of residence and threatened her with admission to a psychiatric hospital if she refused to accompany them back to St Petersburg.  She returned to St Petersburg where, although not restrained, she was unable to continue to attend meetings of the Jehovah’s Witnesses under threat from her husband of being admitted to a psychiatric hospital if she did.  She found not being able to practise her faith difficult and made the decision to leave her husband and Russia, departing for Australia on an organised tour in October 1998.  The first applicant claims to fear persecution, if forced to return to Russia, by “her husband, the police, or fascist fanatics”.  However, since arriving in Australia she has been reconciled with her husband, who now accepts her choice of religion and does not obstruct her practise of it.  When questioned by the Tribunal about her fear of her husband, she stated that it no longer existed, but that she had a fear of being persecuted by reason of her religion and was not confident that the authorities would protect her from such persecution.

9                     In setting out the claims of the second applicant (the third applicant has not made claims under the Convention), it is unnecessary to repeat all of the facts concerning the first applicant.  The Tribunal accepted that the claims made by the first and second applicants were consistent in so far as the circumstances leading up to the first applicant’s departure for Australia were concerned.  The second applicant acknowledged his part in the breakdown of his marriage, blaming his inability to accept his wife’s religion, but claimed that he was himself the victim of Government propaganda aimed at “distracting the population by diverting their hatred and anger towards Jews religious organisations, ethnic minorities etc”.  He says it was only after learning (in December 1998) that his wife had left Russia that he came to the realisation that he had destroyed his family.  He held the State responsible for leading him to believe what he had about the Jehovah’s Witnesses, and obtained literature about the religion which did not illustrate to him any reason to oppose it.  He stated that at this time he was depressed and angry, which led to his attempting suicide.  He recovered and became a “different and better person”. 

10                  In early December 1998 the second applicant staged a protest on the cathedral steps, in which he displayed two posters calling for the “abolition of fascist law against religion” and accused the Government of being responsible for the loss of his family.  The police came and, after resisting their efforts to remove him, he was forced to accompany them to the police station where he was told that he could be imprisoned for protesting without a permit, resisting arrest and insulting police who were carrying out their duties.  He said that he was made to give an undertaking that he would leave the place but at the hearing said that this undertaking was not to leave, and that he understood it to mean not to leave the country as the matter would be investigated further. 

11                  Later the second applicant received a summons, although he could not tell the Tribunal what it was for, stating only that he was very frightened to receive it and assumed that it was issued in response to his protest.  As he had by now been granted an Australian visa he sold his flat in St Petersburg and travelled to his mother’s home which was about 900 kilometres away, remaining hidden there until leaving for Australia in late February 1999.

12                  The Tribunal considered the applicants’ evidence and claims in a section in each set of reasons titled “Findings and Reasons”.  In each set of reasons for decision the Tribunal referred to independent country information concerning the position of Jehovah’s Witnesses in Russia and did so at length in the reasons concerning the first applicant.  In relation to the first applicant it accepted her account of events, “apart from an occasional exaggeration”, and found it to be consistent with that of her husband.  The Tribunal did not, however, consider that she had a well-founded fear of persecution for reason of her religion, finding the assault on the street in November 1997 to be a random attack unassociated with her religion.  While acknowledging that previously non-traditional religious organisations such as the Jehovah’s Witnesses had encountered difficulties in practising their faith, the Tribunal relied on independent country information to conclude that Jehovah’s Witnesses are no longer persecuted in Russia, stating:

“… they are legally registered federally and in many regions and the information does not suggest that if they are the victim of a criminal act, that they are denied state protection for reason of their religion.”

13                  In relation to the second applicant the Tribunal, while finding his account of events concerning his wife to be consistent with hers, considered him to be evasive and contradictory when giving evidence about other aspects of his claims.  In particular, when dealing with his protest and subsequent treatment by the police the Tribunal found anomalies between his written account and his oral evidence of what took place.  It found that his mistreatment, which he claimed to be severe, did not necessitate medical attention, and neither did he take any steps to complain to anyone about it.  The Tribunal also did not accept his evidence about signing the document to “leave the place” as relating to a stipulation that he not leave the country, as his passport was not revoked.  It did, however, consider it possible that he had received a summons, but found it peculiar that he could not give a reason for the summons.  The Tribunal considered that in relation to his protest the conduct of the matter had been in accordance with law and that the fact that he had been able to sell his flat in St Petersburg, travel and stay with relatives, and then legally depart Russia for Australia confirmed the lack of any on-going interest in him by the authorities.  It went on to conclude that if returned to Russia the matter of the summons would be dealt with according to law for failing to answer a summons and would not be “differential treatment .. for a Convention reason.”

14                  In considering the claim by the second applicant that he would, if forced to return to Russia, have to protest about “unlawfulness”, the Tribunal did not accept that such actions would incur persecution.  It stated:

“(T)he Tribunal accepts independent country information that ordinary citizens can and do protest about a variety of issues, including Government policies and actions; the Applicant’s own evidence and the independent country information does not suggest that such protests attract persecution for a Convention reason.”

The Tribunal noted that there was no record of activism on the part of the second applicant, either prior to his protest at the cathedral or in the two years since.

15                  The Tribunal concluded, in both cases, that the applicants were not persons to whom Australia had protection obligations as set out in the Convention. 

Grounds for review raised by the applicants

16                  In their application for an order of review filed on 13 November 2000, the applicants listed the grounds of the application as follows:

1.      Procedures that were required by the Act to be observed in connection with the making of the decision were not observed (s 476(1)(a)).

2.      The decision involved an error of law, being an error involving the incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the tribunal, or both (s 476(1)(c)).

3.      There was no evidence or other material to justify the making of the decision.

In written submissions later filed by the applicants on 20 April 2000 and in oral submissions made by Mrs Soboleva on behalf of herself and her husband and son, it emerged that the applicants’ complaint concerning the Tribunal’s decisions, was the alleged inconsistencies between certain findings and conclusions in the applicants’ cases and earlier cases involving other Jehovah’s Witnesses from Russia. The applicants alleged the Tribunal failed to explain why it reached a different conclusion. The applicants submitted that the approach of the Tribunal revealed a failure to comply with the obligations imposed by s 430 of the Act

Consideration of the Issues

17                  In their submissions in this Court, the applicants referred to two earlier Tribunal decisions. They were a decision of the Tribunal of 20 April 1998 in N97/15079 and a decision of 30 June 2000 in V99/09940. 

18                  The first decision involved an application for a protection visa by a Russian man who claimed that he feared persecution should he return to Russia on account of his religious beliefs, namely that he was a Jehovah’s Witness. He claimed, and it was accepted by the Tribunal, that because of his religious beliefs he had refused to perform his military service and was subsequently subjected to harassment, including physical abuse, at the hands of the authorities and other members of society.   The Tribunal accepted that the fact the applicant was a member of the Jehovah’s Witnesses was an exacerbating factor in the decision of the authorities to single him out for failure to fulfil his military service obligations.  He also claimed, and it was accepted by the Tribunal, that he had been detained by police and abused by them in an attempt to make him reveal the meeting place and activities of his branch of the Jehovah’s Witnesses.  In its reasons in that matter the Tribunal stated that there was much evidence before it of social intolerance in Russia directed towards people who belong to non-mainstream sects, including the Jehovah’s Witnesses. The Tribunal reached the following conclusion:

“..because the applicant has already come under the scrutiny of the authorities due to his military service obligations, there is a real chance at the present time that he could face other forms of harassment and discrimination against him personally as a result of his religious beliefs, directed at him because of social intolerance described above (and he has suffered some instances of abuse at the hands of people generally) as well as harassment  by the authorities under the law dealing with military service and religious registration.”

Although in its reasons for decision the Tribunal made some comments of general application about the position of Jehovah’s Witnesses in Russia, there were operative factual differences between this case and the present matter.

19                  In the decision of the Tribunal of 20 April 1998 in N97/15079, the applicant’s religiously based objection to military service and its consequences were viewed as significant factors.  The country information relied on was also different and more dated than the information relied upon by the Tribunal in the present matter. For example, the Tribunal relied upon a report from the Bureau for Democracy, Human Rights and Labour released on 30 January 1998. In the present application, the Tribunal relied on a report from the same Bureau released more than one year later on 9 September 1999.

20                  The decision of the Tribunal of 30 June 2000 in V99/09940 also involved a application for a protection visa by a Russian man who claimed that he feared persecution should he return to Russia on account of his religious beliefs, namely that he was a Jehovah’s Witness. In that case the applicant made the following claims that were accepted by the Tribunal. He claimed that while distributing religious material he had been arrested, detained and interrogated by police.  He claimed he had been forced to resign from one position because his employer had pushed him to choose between his religion and his job.  He claimed that after relocating to another city, he had twice been detained by police as a result of preaching about his religion, and on the second occasion he had beaten and subsequently served with a summons for preaching illegally.  The Tribunal reached the following conclusion:

“The Tribunal finds that the applicant had come to the attention of the authorities on a number of occasions and has suffered harm which is of the type and severity to constitute Convention persecution.  The Tribunal is of the view that the applicant is a victim of the vagaries of local authorities irrespective of the existence of national laws which on the surface are attempting to legalise the position of the Jehovah’s Witnesses.  The Tribunal finds that there is a real chance that the applicant would be persecuted for his religion upon return, this is especially because of his record and of the nature of the proselytising which is required by his religion. The Tribunal also considered whether the applicant could relocate within Russia, however, it finds that the situation for Jehovah’s Witnesses is too unpredictable at the local level for it to be satisfied that the applicant would not face a real chance of persecution.”

The Tribunal in this decision, relied on country information contained in the report from the Bureau for Democracy, Human Rights and Labour released on 9 September 1999.  That report was also relied on by the Tribunal in the present matter, although it was supplemented by a 1999 report from the Australian Embassy in Moscow that was not referred to in the decision of 30 June 2000.  There are also some factual differences between this earlier case and the present matter. The applicant in the earlier case appears to have been more active in his proselytising.  In its reasons for decision the Tribunal said:

“The Tribunal accepts that the applicant joined the Jehovah’s Witnesses and, as is required in the practice of that religion, was preaching from door to door.”

In addition, the applicant in the earlier case had suffered persecution at the hands of police and neighbours, rather than his family.

21                  There is nothing in the Actto suggest that the Tribunal is bound in some way by conclusions reached in previous decisions. Indeed the Act, and in particular s 420, requires that the Tribunal must act in accordance with the merits of the case.  As the Full Court explained in Sellamuthu v Minister for Immigration & Multicultural Affairs (1999) 90 FCR 287 the nature of the Tribunal’s task in reviewing a decision requires a consideration of all available evidence.  In performing that task, the Tribunal cannot, in principle, be constrained by what it had decided in earlier cases.

22                  The question of consistency between Tribunal decisions was discussed by Marshall J in Ibrahim v Minister for Immigration & Multicultural Affairs [2000] FCA 351.  In that case, his Honour was concerned with a decision in which the Tribunal had found that Mogadishu was safe for members of Mr Ibrahim’s clan, despite the Tribunal having apparently decided the opposite some months earlier, in a decision concerning Mr Ibrahim’s sister.  Marshall J noted the principle espoused in Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 that consistency is an important element of good administrative decision making but found:

“The success of Mr Ibrahim’s sister’s application did not mean that the RRT was bound to grant Mr Ibrahim a protection visa. Its task, in Mr Ibrahim’s case, was to consider the evidence before it, including the country information and come to a view about the merits of the application in accordance with well established legal principles referred to by the High Court of Australia in Chan v Minister for Immigration (1989) 169 CLR 379. Further, whether a person has a relevant well founded fear of persecution must be considered at the time of the decision. For example, changed circumstances in a country may result in a claim that may have succeeded at a previous time being a claim unlikely to now succeed as a consequence of the change. The country information from the UK Home Office and DFAT referred to in the RRT’s reasons was not available to the member of the RRT who decided the application of Mr Ibrahim’s sister. There is no substance, in my view, in Ms Mortimer’s submissions on the “consistency of approach” issue.

23                  However, the question remains whether when the tribunal reaches a decision which involves findings which are apparently or arguably inconsistent with findings in an earlier decision, it is required to address that apparent inconsistency, at least in cases where the earlier decision has been referred to by a party as material relevant to the review.  Section 430 of the Migration Act requires the Tribunal to set out its findings on material questions of fact and identify the material on which those findings are based.  The Full Court in Minister for Immigration and Multicultural Affairs v Singh (2000)98 FCR 469 (“Singh”) held that a failure to comply with s 430 is a reviewable error of law of the type contemplated by s 476(1)(a), that is an error of law whereby procedures required by the Act to be observed in connection with the making of a decision are not observed.  As to what matters represent material questions of fact on which the Tribunal is obliged to set out its findings, the Full Court held (at 482) that:

“... if a decision, one way or the other, turns upon whether a particular fact does or does not exist, having regard to the process of reasoning the Tribunal has employed as the basis for its decision, then the fact is a material one.  But a requirement to set out findings on material questions of fact, and refer to the material on which the findings are based, is not to be translated into a requirement that all pieces of conflicting evidence relating to a material fact be dealt with: see Durairajasingham at pars [65] and [67].

24                  The applicants submitted that, in not following earlier Tribunal decisions, the Tribunal evidently made a material finding of fact central to its final conclusion, namely that the situation in Russia for Jehovah’s Witnesses had changed in the intervening months between decisions.  It was argued that this finding of fact, and the evidence on which it was based, should have been explicitly addressed in the Tribunal’s reasons for decision. 

25                  In a not dissimilar case, Witharana v Minister for Immigration & Multicultural Affairs (Unreported, Federal Court, Wilcox J, 21 December 1998), Wilcox J considered whether the Tribunal was obliged, in reviewing and rejecting a man’s application for a protection visa, to refer to and distinguish the successful applications of his mother and sister.  Wilcox J held:

“I do not think it was an error of law for the member hearing the present case to fail to refer to the other decision.  Section 430 of the Migration Act 1958 requires that the Tribunal set out its findings on material questions of fact and identify of the material upon which those findings are based.  The Act does not require  the Tribunal to refer to all the material to which it is referred before, during or immediately after a hearing.  I think the member hearing the present case was entitled to take the view that the decision given by his colleague in the earlier case was irrelevant to the task he had to perform.  The member had to make up his own mind on the basis of the material before him.  It would have been quite improper for him to be influenced by the finding of a  colleague in relation to a factual matter that depended upon different evidence.  This is just as true where the earlier finding was in favour of granting a visa as it would be if the earlier claim for refugee status had been rejected.

If the member hearing the present case thought the earlier decision was irrelevant, he was entitled to disregard it in his reasons for decision.  I do not think that the failure to make any reference to the earlier decision constitutes an error of law or a failure to provide substantial justice to the present applicant.” 

26                  However, where an earlier decision is both factually similar and temporally proximate to the circumstances of the application before the Tribunal and the earlier decision has been referred to and relied on by a party but not considered and referred to by the Tribunal, it may arguably give rise to error reviewable in this Court. That arguably is the position not because the Tribunal should, prima facie, follow earlier decisions but because an earlier decision of this type might be viewed as a vehicle used by a party to raise material questions of fact about which the Tribunal should, as required by s 430, make findings and set out the evidence in support thereof: see Singh at [47] and [60]. 

27                  However the facts of this case are such that I do not need to express a concluded view on this question.  That is because it appears that only one of the earlier decisions was brought to the attention of the Tribunal and relied upon by the applicants, namely the decision in N97/15079.  Moreover that decision was referred to by the Tribunal in its reasons for decision concerning the first applicant.  The Tribunal addressed the earlier decision as follows:

“The adviser said that despite the numbers of Jehovah’s Witnesses in Russia, many have fled and been granted refugee status in Australia; he referred to the decision of the tribunal (P Blair) in N97/15079 of April 1998. The Tribunal notes that the circumstances of that case relate to Moscow and to evasion of military service and mistreatment by the authorities for reasons of religion, and in any case, decisions of the Tribunal are not binding.”

28                 The Tribunal must, in my opinion, be regarded as having fulfilled its obligation under s 430.  The decision in N97/15079 concerned circumstances that were both dated and quite different and did not raise a material question of fact in the present matter.  The later, and potentially more analogous decision of 30 June 2000, was not raised with the Tribunal in the present matter.

29                 Accordingly no judicially reviewable error has been established and the application should be dismissed with costs.

Associate:

Dated:              8 May 2001

Tatiana Soboleva appeared in person on behalf of all the applicants