FEDERAL COURT OF AUSTRALIA

SZDJH v Minister for Immigration and Citizenship [2007] FCA 710

MIGRATION – review of a decision of the Refugee Review Tribunal – whether obligation on Tribunal to make its own further inquiries – whether new evidence can be admitted in review proceedings

Migration Act 1958 (Cth), s 422B

Applicant S214 of 2003 v Refugee Review Tribunal (2006) 90 ALD 632 cited

Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 cited

Chopra v Minister for Immigration and Multicultural Affairs [1999] FCA 480 cited

NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 cited

S1194/2003 v Minister for Immigration and Multicultural Affairs [2006] FCA 1133 cited

SZGQN v Minister for Immigration and Citizenship [2007] FCA 428 cited

WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 277 cited

SZDJH v MINISTER FOR IMMIGRATION AND CITIZENSHIP & REFUGEE REVIEW TRIBUNAL

NSD 321 OF 2007

MIDDLETON J

7 MAY 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

1                     This is an appeal against a judgment of a federal magistrate of 23 February 2007dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 5 September 2006.  The Tribunal had affirmed a decision of a delegate of the first respondent to refuse to grant the appellant a protection (Class XA) visa.

FACTUAL BACKGROUND AND THE APPELLANT’S CLAIMS

2                     The appellant is a citizen of the Russian Federation who arrived in Australia as a visitor on 24 July 2003 from New Zealand.  The appellant had left Russia on 30 October 2001 for New Zealand. 

3                     Before the Tribunal the appellant claimed to have a well-founded fear of persecution because he was a Jehovah’s Witness, and had requested the release from military service of other Jehovah’s Witnesses, as it was against their religion to join the army or use arms.  Following his activities he was arrested, beaten, and interrogated by the authorities.  The appellant claimed that he went into hiding as police searched for him at his home and work.  The appellant was finally arrested outside a Kingdom Hall and interrogated and beaten.  In his visa application, the appellant also stated that groups from the Russian Orthodox Church had broken windows from their Kingdom Hall.

THE DECISION OF THE TRIBUNAL

4                     The Tribunal found that the appellant had some knowledge of the Jehovah’s Witness faith but did not accept that he was a Jehovah’s Witness as claimed.  The appellant claimed he attended a few Kingdom Halls around Sydney and provided a document that he was not to have a blood transfusion, but the appellant could not provide evidence from a bible study group that he was a Jehovah’s Witness. 

5                     The appellant provided the Tribunal with letters that he had attended weekly meetings at a Kingdom Hall in Christchurch New Zealand and had shown an interest in continuing his studies which started in St Petersburg Russia.  However, the Tribunal noted that the author’s knowledge of the appellant’s studies in St Petersburg could only have come from the appellant.  The Tribunal also had regard to an email from a friend of the appellant in St Petersburg to corroborate his claim of being arrested and beaten.  However, the Tribunal did not consider that this evidence outweighed the problems with the appellant’s own evidence.

6                     The appellant also produced a letter in Russian which was from a Jehovah’s Witness elder which the interpreter confirmed indicated the appellant had been baptised in April 2001.  However, the Tribunal found it difficult to give weight to the document as it was unsigned.  The Tribunal noted that even if it called the telephone number provided in the letter, there was no guarantee of the identity of anyone who answered. 

7                     In relation to the appellant’s claim as to what happened to him in Russia, the Tribunal found that it was not consistent with country information which indicated no Jehovah’s Witnesses were currently imprisoned in Russia for evading military service as their matter would be placed in a pending file for alternative civil service.  The Tribunal had on 9 October 2002 written to Mr Kalin, Chairman of the Presiding Committee of the Administrative Centre of Jehovah’s Witnesses in St Petersburg, requesting answers to the following questions:

1.         Do you know whether the Jehovah’s Witnesses who successfully appealed their military service on the basis of conscientious objection were conscripts or reservists?

2.         Are you aware of the specific grounds of their appeal and of the courts’ reason for their findings?

3.         Are you aware of any other cases which have been unsuccessful in utilising the constitutional provisions concerning conscientious objection?

8                     The reply, dated 23 October 2002, was as follows:

1.         We have numerous cases when young Jehovah’s Witnesses have appealed their military service on the basis of conscientious objection as conscripts.

We also have some experiences concerning reservists.  So far, all cases concerning reservists have been resolved without going to court.

        2.         Does not apply to reservists.

3.         While the Constitution guarantees a right for alternative civil service, the Federal law making the actual provisions for such service was adopted only on July 25, 2002 and will not become active before January 1, 2004.  Therefore, when young Jehovah’s Witnesses refuse military service as conscientious objectors and apply for alternative civil service, usually their cases are put into a pending file waiting for the implementation of the alternative civil service.  Currently there are no Jehovah’s Witnesses imprisoned in Russia for this reason.  (Emphasis in original).

9                     This information was discussed with the appellant before the Tribunal and he was well aware of its import.  Consequently, the Tribunal found the appellant was not telling the truth regarding his claims in Russia.  The Tribunal did not accept the appellant had been arrested.  The Tribunal did not accept the appellant had been persecuted for his religious beliefs or for his imputed political beliefs or as a member of a particular social group.

THE DECISION OF THE FEDERAL MAGISTRATE

10                  Before the federal magistrate the appellant relied upon his amended application filed on 1 December 2006 which raised four grounds of appeal.  Firstly, the appellant asserted the Tribunal did not consider the country information that stated it was possible for Jehovah’s Witnesses who refuse military service to be detained.  Secondly, that the Tribunal did not comment on the appellant’s medical alert form which stated he was unable to have a blood transfusion.  Thirdly, that in relation to the findings regarding the baptism, the Jehovah’s Witness elder had written his name instead of signing it.  Fourthly, that the appellant was unable to obtain corroborating documents due to his offence.

11                  The appellant noted that the Tribunal did not inquire from the government but from Mr Kalin about Jehovah’s Witnesses being imprisoned.  The appellant asserted that Mr Kalin was interested in the matter and did not wish the members of the appellant’s organisation to seek refuge.  The appellant also attached a new document from the Jehovah’s Witness elder attesting to the appellant’s baptism with a signature included.

12                  The federal magistrate, in considering the Tribunal’s decision in light of the claims made by the appellant, found that the Tribunal had discussed the general information with the appellant at the hearing and he had been on notice that the country information did not support his claims.  His Honour found the grounds of appeal essentially sought a review of the merits and the Tribunal was not obliged to conduct further inquiries.  In relation to the appellant’s medical alert, his Honour held that it was open to the Tribunal to find it did not overcome the absence of direct corroborating evidence the appellant was a Jehovah’s Witness.  It was open to the Tribunal to attribute the weight to the documents in the manner it did.  His Honour held that the new letter of baptism the appellant submitted was not before the Tribunal and further, the appellant did not explain to the Tribunal why he could not obtain the corroborating documents at the time of the hearing.  Taking into account all the arguments presented by the appellant, his Honour was unable to identify jurisdictional error and dismissed the application.

GROUNDS OF APPEAL

13                  The notice of appeal filed on 6 March 2007 stated the following:

The Refugee Review Tribunal and Federal Magistrates Court committed jurisdictional error and an error of law in finding that I was not entitled to the grant of a protection visa.  I informed the Federal Magistrates Court in submission 5.2.2007 about RRT did not inquire if the conscientious objectors Jehovah’s Witnesses were sent to prison from official government of Russia, who would have such information, but from member of our organisation Mr Kalin, who is interested in this matter, does not wish the members of my organisation seeking refuge.  Federal Magistrates Court ignored that.

14                  The notice of appeal also stated the appellant was attaching additional information regarding imprisoned conscientious objectors who were Jehovah’s Witnesses.  I was told that such information was filed with the Court and sent to the first respondent.  Such information did not appear to be on the Court file, but the appellant handed me such additional information which I have marked for identification.  Only the first five folios are additional as the other material consists of documentation before the Tribunal and in fact appears in the appeal book.  I was told by the appellant that the additional information, other than that which was already before the Tribunal, was obtained by the appellant himself from the Internet, after the Federal Magistrates Court decision.  It is material relevant to the year 1998 and indicates that, at that time, at least two Jehovah’s Witnesses who were conscientious objectors were imprisoned.  This is not inconsistent on its face with the statements of Mr Kalin as Mr Kalin only stated that “currently”, namely in October 2002, there were no Jehovah’s Witnesses imprisoned in Russia for reason of the conscientious objection.  The appellant, however, says that the additional information is relevant to support his version of events because it is relevant to the time he was in Russia.  In this way he says it supports his credibility of the facts he placed before the Tribunal.

15                  Before going to the question of the admission into evidence of the additional information, I will deal with the substantive ground of appeal raised in the notice of appeal filed on 6 March 2007.  In the decision of the federal magistrate the ground now relied upon in the notice of appeal was discussed as follows, at [17]:

The applicant in his oral submissions today presented a further argument challenging this part of the Tribunal’s reasoning.  This was that the Tribunal should not have relied upon the statements from the chairman of the church, but should have obtained information from the Russian authorities as to how objections to military service by Jehovah’s Witnesses were dealt with by police and other authorities.  He argued that the chairman “is interested in this matter, and does not wish the members of my organisation seeking refuge”.

And at [18]:

However, the Tribunal was not obliged to conduct further inquiries, and might have been criticised if it relied upon information from the Russian authorities themselves.  In my opinion, this argument only challenges the merits of the Tribunal’s factual assessment, and does not reveal jurisdictional error.

16                  The substance of this ground is that there was a failure by the Tribunal to inquire from the Russian Government whether conscientious objectors were sent to prison in the circumstances alleged here by the appellant. 

17                  It would appear that s 422B of the Migration Act 1958 (Cth) applies to the appellant’s application.  Prior to the introduction of s 422B there was generally no obligation on the Tribunal to conduct its own investigation or to make some particular inquiry: see generally, WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 277 at [25]; Applicant S214 of 2003 v Refugee Review Tribunal (2006) 90 ALD 632 at 641; and S1194/2003 v Minister for Immigration and Multicultural Affairs [2006] FCA 1133 at [13].  With the introduction of s 422B this position is made clear: see SZGQN v Minister for Immigration and Citizenship [2007] FCA 428 at [28].

18                  In any event, it is apparent from this case that the Tribunal did make inquiries as to whether conscientious objectors were sent to prison.  It relied upon information from Mr Kalin in forming its view on whether conscientious objectors were sent to prison.  I see nothing wrong with the approach of the Tribunal in making this choice in its assessment of the information, and this is clearly a factual matter for it: see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] to [13].

19                  I now turn to the question of the additional information.  In my view the appellant has had ample opportunity to put material to the Tribunal and to place any evidence to rebut the statements of Mr Kalin.  In fact, the appellant did address the Federal Magistrates Court as to Mr Kalin possibly being wrong.  Even before the federal magistrate no additional information was sought to be tendered into evidence.  No sufficient explanation is now offered in relation to the additional information sought to be relied upon and why it was not sought to be relied upon earlier: see generally, Chopra v Minister for Immigration and Multicultural Affairs [1999] FCA 480 at [68] and following.

20                  It is not sufficient to say, as the appellant does, that upon the Federal Magistrates Court making its decision, he tried harder to find further material.  The appellant was well aware that his credit was in issue before the Tribunal, and he should have made all efforts to produce all the material he wished to rely upon before the Tribunal.  Even if the new evidence would now be admissible, to which I refer to, for example, Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446, remembering that this is a review procedure, in my view, I should not allow the additional information to be adduced by the appellant before me.

21                  There is a public interest in disposing of public law cases in a timely manner and this is not a case where the issue to be agitated here was not appropriately and clearly put to the appellant before the Tribunal.  Fairness does not dictate in this case that I should allow the appellant to tender into evidence any new material for the purposes of this appeal.  My function is to review the decision of the federal magistrate and the Tribunal and not to consider the appellant’s visa application on the merits and de novo.  This is particularly so where the Tribunal did not accept the appellant as a witness of truth. 

22                  I further observe that the additional material seems to me to be relevant to the appellant’s credibility.  The Tribunal, in considering the material of Mr Kalin, was treating it as confirmatory of its view that the appellant was not telling the truth about his involvement with Jehovah’s Witnesses.  Even if the Tribunal had the additional information before it, any response, in my view, would not have affected the Tribunal’s finding about the credit-worthiness of the appellant.  I am not satisfied that there is any significant possibility that the decision of the Tribunal or the Federal Magistrates Court would have been different if the additional information now sought to be relied upon was in fact before either the Tribunal or the federal magistrate.

23                  In my view, the approach of the Tribunal and the federal magistrate, and their conclusions, were correct.  Accordingly, the appeal will be dismissed. 

Associate:

Dated:         17 May 2007