FEDERAL COURT OF AUSTRALIA

SZAHQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 953

MIGRATION – procedural fairness – two and a half year delay between hearing before Refugee Review Tribunal (RRT) and decision – whether delay sufficiently significant to produce jurisdictional error – delay not causative of any miscarriage of justice or deprivation of rights – no procedural unfairness demonstrated

MIGRATION – unreasonableness – circumstances in which an adverse credibility finding can be made on the basis of inconsistent country information – finding was one reasonably open to the RRT – no error demonstrated

Federal Court of Australia Act 1976 (Cth) s 25(1A)

Migration Act 1958 (Cth) s 91R

Judiciary Act 1903 (Cth) s 39B

Applicant A99 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs[2004] FCA 773 cited

Boodhoo v Attorney-General of Trinidad and Tobago [2004] 1 WLR 1689 referred to

Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 applied

Eloujenko v Minister for Immigration & Multicultural Affairs [2001] FCA 980 referred to

Labara v Minister for Immigration & Multicultural Affairs (2002) FCAFC 145 cited

Minister for Immigration & Multicultural Affairs v Respondents S152/2003 (2004) 205 ALR 487 applied

Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 referred to

NAIS v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 1 cited

Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (1999) 168 ALR 407 applied

Sepet v Secretary of State for the Home Department [2003] 1 WLR 856 cited

SZAHQ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 548 affirmed

SZAHQ & ORS v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 2268 OF 2003

HELY J

26 JULY 2004

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The application be dismissed with costs.

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

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     This is an appeal from a judgment of Driver FM given on 26 November 2003 in which his Honour dismissed an application for review of a decision of the Refugee Review Tribunal (‘the RRT’) made on 7 February 2003 and handed down on 27 February 2003.  By direction of the Chief Justice under s 25(1A) of the Federal Court of Australia Act 1976 (Cth), the appellate jurisdiction of the Court in relation to the appeal is to be exercised by a single judge.

2                     The appellants are members of the one family – husband, wife and son – who are citizens of the Russian Federation.  As I cannot refer to the individual appellants by their own names, I will refer to them as the husband, the wife or the son as the case may be.  The appellants applied for a protection visa upon the ground that they had a well-founded fear of persecution in Russia because of their faith.  All three are Jehovah’s Witnesses.

3                     The appellants arrived in Australia on 23 September 1998, and they lodged a protection visa application on 6 November 1998.  The protection visa application was refused by a delegate of the respondent on 10 February 1999, and on 17 March 1999, application was made to the RRT for a review of that decision.  The wife made a statement to the RRT in support of the application in which she set out her claims that the appellants had been subject to a long history of abuse and discrimination for reason of their religion.  The wife also claimed the authorities had failed to protect her family from the abuse and discrimination.

The RRT’s decision

4                     The appellants attended a hearing conducted by the RRT on 15 August 2000 at which each of them gave evidence, and were questioned about their claims.  The decision of the RRT was not made until 7 February 2003, more than two and a half years after the hearing.  On 25 August 2002 migration agents acting on behalf of the appellants wrote to the RRT pointing out that it was then over two years since the hearing without the appellants having received ‘any formal advice’ from the RRT.  The migration agent submitted further information and requested advice as to the anticipated decision date ‘to appease the great strain that exists’.

5                     Another six months went by before the RRT handed down its decision.  There is nothing in the papers before me which explains this extraordinary delay, and counsel for the Minister was unable to proffer any justification for it.  My concern about the delay was heightened by the fact that the fundamental basis on which the RRT rejected the appellants’ claims was that the RRT did not find the wife to be a credible witness.  Instead, the RRT found that she had exaggerated and fabricated her claims in relation to the period after 1990 in order to enhance her claim to refugee status.  The RRT found that the wife’s claims of discrimination prior to 1990 were consistent with independent information, but that her claims after that time were not.  In coming to this conclusion, the RRT placed particular reliance on information that indicated that the period around 1990 marked the beginning of a new era of religious freedom in Russia which continues up to the present day.

6                     It is convenient for me to deal briefly with the legal significance of the RRT’s delay.  It is not a matter raised by the appellants’ notice of appeal.  However, the delay is so long that it needs to be addressed.  The decision of the Full Court in NAIS v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 1 establishes that at least in some circumstances gross delay on the part of the RRT in giving its reasons for decision may constitute jurisdictional error so as to provide a ground of relief under s 39B of the Judiciary Act 1903 (Cth).  However, that ground will not be made out unless the delay leads to the conclusion that there has been a miscarriage of justice, or that the appellants were deprived of the right to have their review application dealt with in accordance with law.  In Boodhoo v Attorney-General of Trinidad and Tobago [2004] 1 WLR 1689 the Privy Council held that delay in producing a judgment would be capable of depriving an individual of his right to the protection of the law as provided for in the constitution of Trinidad and Tobago, but only in circumstances where by reason of the delay the judge could no longer produce a proper judgment, or the parties were unable to obtain from the decision the benefit to which they were entitled.  There is nothing in the circumstances of the present case which would justify a conclusion that there has been a miscarriage of justice by reason of the delay, particularly as the RRT’s adverse credibility findings in relation to the wife were unrelated to questions of demeanour.

7                     Returning to the RRT’s decision, the adverse credit finding was substantially based on the RRT’s view of the ‘country information’ available to it which, in the RRT’s assessment, established that:

-                     apart from isolated instances, Jehovah’s Witnesses in Russia are not harassed, threatened or discriminated against or physically abused by the Russian community at large;

-                     the Russian Government does not encourage or condone the harassment or persecution of Jehovah’s Witnesses;

-                     there is nothing to suggest that the authorities ignore assaults on Jehovah’s Witnesses, rather where Jehovah’s Witnesses have been physically attacked, charges have been brought against the perpetrators;

-                     there is a reasonable willingness on the part of the authorities to take action in respect of criminal acts against Jehovah’s Witnesses; and

-                     independent country information, including information derived from Jehovah’s Witnesses themselves, is that Jehovah’s Witnesses are not persecuted in Russia now; nor does the information suggest that Jehovah’s Witnesses are denied adequate State protection for reason of their religion.

8                     Because the wife’s evidence was inconsistent with the RRT’s assessment of the independent evidence, the wife’s evidence was found not to be credible.

9                     Finally, a related aspect of the appellants’ claims concerned compulsory military service on the part of the husband and the son.  The RRT’s finding on this issue was that Jehovah’s Witnesses are able to claim conscientious objection to military service.  In any event, the RRT found that any punishment for refusal to perform military service would not be on a discriminatory basis, because military service was a legal requirement which is applied universally to all males in Russia, and there was no suggestion in the evidence that the laws were enforced in a discriminatory manner.

Decision of the Federal Magistrate

10                  Driver FM found that the credibility finding which the RRT made in relation to the wife was one which was reasonably open to the RRT on the material before it: SZAHQ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 548 at [3].

11                  When the proceedings were before Driver FM, the appeal to the High Court from the decision of the Full Court in Labara v Minister for Immigration & Multicultural Affairs [2002] FCAFC 145 (‘Labara’) had not been determined.  His Honour distinguished the decision of the Full Court from the case before him upon the basis that in Labara the RRT accepted the claimed incidents of harm, whereas, in this case, the RRT rejected the claims of harm suffered after the collapse of the Soviet Union.  Accordingly, his Honour doubted whether the RRT needed to consider the availability of State protection at all, given that the RRT did not accept that the appellants had suffered harm since the establishment of the modern Russian state.  His Honour also distinguished Labara because of the operation of s 91R of the Migration Act 1958 (Cth) (‘the Migration Act’), which was not in force when Labara was decided.

The appeal to this Court

12                  The Notice of Appeal asserts that:

‘The Magistrate Court misunderstood the implications of the appellants’ arguments, which can be summarised as follows:

            (a)        there was information available to the Tribunal (and to the Magistrate Court) that the Jehovah’s Witnesses are subjected to isolated incidents of harm in Russia;

            (b)        the raised credibility issue was based on the RRT’s erroneous finding that the mentioned isolated incidents cannot constitute persecution;

            (c)        the issue of possible State protection was not properly addressed.  This issue is extremely important as, according to independent information available to the Tribunal ‘isolated incidents’ do take place in Russia;

            (d)        the issue of “compulsory military service” was seriously misconceived and misrepresented.  Contrary to the Tribunal’s statement that “punishment for refusal to perform military service would not be on discriminatory basis as military service was a legal requirement” there is the right for alternative service for members of “registered religious groups”, the right which, according to credible sources available to the Tribunal, has not been observed by Russian authorities”.’

13                  The appellants lodged a written outline of their submissions which I have placed with the papers.  Those submissions essentially raised three matters, namely:

-                     The RRT’s finding that the appellants’ post-1990 claims lacked credibility was incorrect, as the RRT had already accepted that there are isolated incidents of persecution of Jehovah’s Witnesses in Russia;

-                     given that the Tribunal accepted that isolated instances did occur, the issue of effective State protection had to be addressed; and

-                     that is all the more so as in other cases concerning persecution of Jehovah’s Witnesses in Russia, the Tribunal found that there was a real chance of persecution.  The file numbers of some of these cases are quoted in the written outline.

Credibility

14                  The RRT’s analysis of the appellants’ credibility relied upon a distinction between the time before and after the arrival of perestroika in Russia in the late 1980s.  Prior to this time, the RRT accepted that there was harassment and discrimination of Jehovah’s Witnesses in Soviet Russia.  However, the independent country information indicated that the end of the Soviet period brought an era of religious freedom.  As the appellants’ post-1995 claims of persecution were inconsistent with the country information, the RRT found that these later claims should be rejected.

15                  The RRT’s finding on the wife’s credibility came in two parts.  First, the RRT said:

‘Whilst I accept that the applicant is an honest person, as stated in the character references, the most significant factor casting doubt on her evidence regarding what supposedly happened to her in Russia post-1995 is the independent evidence with regard to the situation of the Jehovah’s Witnesses in that country.  The Jehovah’s Witnesses themselves indicate that after perestroika they experienced an era of freedom of worship that continues to the present day.’

16                  Then later, the RRT said:

‘Having regard to the inconsistency between the applicants’ claims and post-hearing documents and the independent evidence available to me I am of the view the applicant is not a credible witness.  I am of the view that the applicant has exaggerated and fabricated her claims in order to enhance her claim for refugee status.

As referred to above, I consider the applicant’s evidence to be inconsistent with the independent evidence available to me as not to be credible.  The Jehovah’s Witnesses themselves have stated that they are “unaware of any incidents of physical abuse or harassment against individual Jehovah’s Witnesses from either the authorities or from members of the public”.’

17                  At first blush, I was troubled by the proposition that the wife is both an honest person, but also a person who fabricated her claims.  But on a fair reading of the RRT’s decision, the finding which the RRT made was that the wife, whilst a person who was honest in her ordinary life, nonetheless made claims which the RRT was unable to accept having regard to its assessment of the conditions in Russia in the period after 1990.

18                  In Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (1999) 168 ALR 407 at [67] McHugh J described a finding on credibility as being the function of the primary decision-maker par excellence.  Even if a Court disagrees with the factual finding which the decision-maker made that does not mean that the decision-maker made an error of law, let alone a jurisdictional error.  Whilst it is at least theoretically possible that the appellants’ claims were consistent with the independent evidence available to the Tribunal, inasmuch as that evidence indicated that in isolated instances Jehovah’s Witnesses in Russia were harassed, threatened, discriminated against or physically abused, whether the appellants were victims of isolated instances of discriminatory conduct was a matter for the RRT to determine.  The general situation in Russia at the time was relevant to the probabilities of whether the wife’s account should be accepted.  If the RRT formed the view, as it did, that the wife’s account was inconsistent with the RRT’s understanding of conditions in Russia, it was not bound to accept the wife’s account: see Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 at 428.

19                  Driver FM was therefore correct in his conclusion that the credibility finding was one which was reasonably open to the RRT on the material before it.

State protection

20                  As I have noted above, Driver FM distinguished the Full Court decision in Labara.  Since Driver FM made his decision, however, the High Court has reversed the decision in Labara in a decision reported as Minister for Immigration & Multicultural Affairs v Respondents S152/2003 (2004) 205 ALR 487.  In the joint judgment of Gleeson CJ, Hayne and Heydon JJ at [28] the Justices said:

‘If the Full Court contemplated that the Tribunal, in assessing the justification for unwillingness to seek protection, should have considered, not merely whether the Ukrainian Government provided a reasonably effective police force and a reasonably impartial system of justice, but also whether it could guarantee the first respondent’s safety to the extent that he need have no fear of further harm, then it was in error.  A person living inside or outside his or her country of nationality may have a well-founded fear of harm.  The fact that the authorities, including the police, and the courts, may not be able to provide an assurance of safety, so as to remove any reasonable basis for fear, does not justify unwillingness to seek their protection.’

And at [29]:

‘Once the Tribunal came to the conclusion that the contention that the Ukrainian authorities instigated or encouraged the harm suffered by the first respondent must be rejected, and that the attacks on him or his property were random and uncoordinated, then its finding about the government’s willingness and ability to protect the first respondent must be understood as a finding that the information did not justify a conclusion that the government would not or could not provide citizens in the position of the first respondent with the level of protection which they were entitled to expect according to international standards.’

21                  In the present case the RRT accepted that there were only ‘isolated instances’ of harm suffered by Jehovah’s Witnesses in Russia on account of their religion and it rejected the appellants’ case that post-1995 they were the victims of such harm.  The RRT rejected the claim that the authorities ignored assaults on adherents to the Jehovah’s Witness religion and found that there was, in fact, a reasonable willingness on the part of the authorities to take action in respect of criminal acts against adherents to that religion.  These findings were made by the RRT after its rejection of the appellants’ specific claims to have been the victims of recent persecution and must be understood to be findings that the appellants have not been persecuted, and that any unwillingness on their part to seek the protection of their country of nationality was unjustified: see Applicant A99 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 773 at [38].  For this reason, I accept the respondent’s submission that there was no error in the RRT’s decision in relation to the question of State protection.  Whether or not the RRT was required to address that question, the RRT in fact did so and in a manner which is unexceptional.

Other cases of persecution

22                  For the reasons which I gave in Eloujenko v Minister for Immigration & Multicultural Affairs (2001) FCA 980 there was no error of law, or jurisdictional error on the part of the RRT in failing to refer to other decisions of the RRT which adherents to the Jehovah’s Witness religion residing in Russia were held to be refugees within the meaning of the Convention.

Military service

23                  This ground is raised in par (d) of the Notice of Appeal, but was not the subject of further elaboration either orally or in written submissions.  There is no substance in the ground.  The ground appears to assert that the RRT made a wrong factual finding inasmuch as it concluded that Jehovah’s Witnesses in Russia are able to claim conscientious objection to military service when in fact this is not so.  Even if that be the case, it leads nowhere, because it does not establish a jurisdictional error on the part of the RRT and because the RRT found that the obligation to perform military service was universal upon all males in Russia, and thus it did not itself amount to discrimination.  There was no suggestion in the independent evidence before the RRT that such laws were enforced in a discriminatory manner.  The result of this finding is that the existence of compulsory conscription was not sufficient to attract the protection of the Convention, because the obligation of service or the punishment for failure to serve, was not for reasons of religion: see Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 342, 354-355; Sepet v Secretary of State for the Home Department [2003] 1 WLR 856.

Conclusion

24                  One further issue was raised at the hearing.  I was informed by the wife that circumstances have recently changed in Moscow after the decisions of the RRT and Driver FM inasmuch as Jehovah’s Witnesses have lost their status as a registered religion.  There is no evidence as to this, but even if it be true, it does not assist the appellants’ case, as these events cannot bear upon the question of whether the RRT made a jurisdictional error in its assessment of the material which was placed before it.

25                  Accordingly, the appeal should be dismissed with costs.

Associate:

Dated:              26 July 2004