Eloujenko v Minister for Immigration & Multicultural Affairs

Federal Court of Australia|2001-07-27|Before: Hely J

REASONS FOR JUDGMENT 1 The applicant is a citizen of the Russian Federation who arrived in Australia on 4 March 1999. He is a 34 year old man from St Petersburg, where his wife and children still live. He is a Jehovah's witness. The Refugee Review Tribunal ("RRT") accepted that he regularly attended Jehovah's Witnesses meetings and Bible study in St Petersburg from mid to late 1997 until he came to Australia. 2 The applicant claimed that he left Russia because he feared for his life. He claimed that he had been persecuted by the Russian ultranationalists and Communists because he is a Jehovah's Witness. In the context, I understand "ultranationalists" to signify those who are opposed to people who follow religions not based in Russia. In support of his claim, the applicant recounted incidents of alleged persecution in which he claimed to have been involved. He also said that Russian patriots and society generally have a hostile attitude towards the Jehovah's Witnesses because they are seen as a non-traditional religion. 3 The applicant studied in a military academy until 1992. He was discharged and became a reservist. The applicant also claimed that he left Russia for fear that he would be punished for his refusal to participate in military training due to his religious beliefs.

Jehovah's Witnesses in Russia today 4 Jehovah's Witnesses were first officially registered in Russia in 1991. They are an established religious group with a long history. Jehovah's Witnesses have existed in Russia for more than a century. The sect claims it has about 250,000 members in Russia, and that some 10,000 people belong to the St Petersburg branch of the Jehovah's Witnesses. These "facts" are taken from RRT's findings. 5 After considering the independent country information and material from the Jehovah's Witnesses themselves, RRT was not satisfied that the Jehovah's Witnesses, as an organisation, have serious problems in Russia now, or that individual Jehovah's Witnesses are persecuted for reason of their religion or prevented from practising their religion. Amongst the material on which RRT relied in this respect, was a statement made in 1998 by the foreign service secretary at Jehovah's Witnesses headquarters that: "Jehovah's Witnesses in Russia have full freedom of religion and are not persecuted for their religious beliefs; they assemble for their meetings and large conventions and preach the word of God in public." Inquiries of the Society in Canada in April 2000 confirmed that this advice is current and that the group is unaware of physical abuse or harassment against individual Jehovah's Witnesses from either the authorities or from members of the public. 6 Despite this conclusion, RRT accepted that some Russians may be hostile towards the religion and that isolated instances of physical attack and/or harassment may occur in various parts of the country from time to time. Some people may react to Jehovah's Witnesses with verbal abuse and hostility, or even, in isolated instances, some sort of physical abuse. 7 RRT accepted that extremist groups, such as the Russian Nationalists Union ("RNE") exist, but it was not satisfied that these groups are supported by the government, or that if criminal complaints were made against them, that they would not be treated other than in accordance with the law. RRT did not accept that Jehovah's Witnesses are denied adequate state protection for reason of their religion.

The applicant's experiences 8 RRT accepted that in September 1998 members of the RNE who were holding a meeting at a place near the Finland station noticed that the applicant had Jehovah's Witnesses literature with him which they threw on the ground. They told him to stay away from that particular place. Despite that warning the applicant returned there a few other times. 9 RRT also accepted that the applicant's wife received some anonymous threatening phone calls in relation to the applicant's religious activities. For reasons which it gave, RRT was not satisfied that this amounted to persecution. 10 RRT accepted that the applicant was assaulted in October 1998. However, it was not satisfied that he was assaulted by a RNE guard in relation to his religious activities as the applicant claimed, or that the assault was serious enough to constitute persecution, or that adequate state protection was denied to the applicant for reason of his religion. 11 In relation to a claim that the applicant was assaulted in November 1998 by members of the RNE, the Tribunal considered that any such assault was an isolated opportunistic one. More importantly, RRT considered, for reasons which it gave, that the inability of the police to apprehend the perpetrators was not indicative of a denial of adequate state protection for a Convention reason. 12 The applicant was able to continue practising his religion, even though he stopped taking literature to the particular place where he had trouble. He continued his other Jehovah's Witnesses involvement and activities until he left Russia in early March 1999.

Military Service 13 The applicant studied in a military academy until 1992 when he was discharged and became a reservist. He has since received call-up notices to which he did not respond, yet he has not been punished or harmed on that account. 14 The Russian constitution obliges its citizens to do military service in conformity with federal law. Under the constitution, if the citizen's convictions and faith are at odds with military service and also in other cases stipulated by federal law, then they have the right to the substitution of an alternative civil service for military service. RRT accepted that beyond the constitutional provision there is still no law to implement the right to alternative service and although some regional authorities are attempting to introduce such programs, the courts often rule against the individual. But the Jehovah's Witnesses Russian Internet site reports a number of cases in which the constitutional right to choose alternative service to military service was upheld by the courts. 15 RRT was not satisfied that if the applicant formally refuses military training as a conscientious objector that he would be treated other than in accordance with laws of general application. Independent country information, including information from the Jehovah's Witnesses themselves, is that individual Jehovah's Witnesses have had their objection to military service recognised by the Courts. RRT rejected the applicant's claim that as a reservist, he would not be treated as a conscientious objector, and it rejected the applicant's claim that he would have to perform military retraining, and that he could be sent to a war zone and killed. 16 RRT was not satisfied the applicant would be persecuted for reasons of his religion in relation to his refusal of military retraining or service.

The proceedings in this Court 17 The Application for an Order of Review specifies the following grounds: "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." No particulars of those grounds are given. The case was adjourned from 12 July 2001 until 20 July 2001 in order to enable the applicant to receive legal advice in accordance with the scheme sponsored by the Minister, but no amended application has been filed. 18 When the matter was called on for hearing, the applicant appeared for himself with the assistance of an interpreter. He presented me with a document which he described as "my letter" which sets forth the grounds on which he disagreed with RRT's decision. He elaborated upon his "letter" in oral submissions. The "letter" is with the papers and I will not reproduce it in these reasons. 19 The "letter" included the following points: - the RRT member in the present case was Ms O'Brien. In six other applications decided between 29 September 2000 and 25 January 2001 Ms O'Brien has affirmed the decision not to grant a protection visa to Russian Jehovah's Witnesses who complained of persecution on the basis of independent country report information that Jehovah's Witnesses are not persecuted in Russia.

On 30 June 2000, RRT (differently constituted) considered the situation in Russia to be quite different from Ms O'Brien's assessment of the position. In that case RRT was 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 Jehovah's Witnesses". On the facts of that case RRT found there was a real chance that the applicant would be persecuted on his return.

There are other decisions of RRT in 1998 and 1999 which have accepted that Jehovah's Witnesses are persecuted in Russia. 20 None of the decisions referred to in the "letter" are before me. Counsel for the Minister indicated that even if the applicant had sought to tender the anonymised versions of those decisions which are publicly available, he would have objected to that course, upon the grounds that administrative decisions made in other cases on other occasions are not relevant to the issue which I have to decide, namely whether RRT made a reviewable error on this occasion. There is force in this submission, although there are limited circumstances in which evidence not before RRT is nonetheless admissible in this Court, as, for example, on the question of actual bias. 21 Counsel accepted that I should proceed upon the basis that the statements contained in the "letter" as to other decisions of RRT accorded with the facts, but contended that even on that assumption, no reviewable error was shown. Understandably, the applicant was unable to articulate the precise ground of review which was said to be enlivened by the matters referred to in his "letter", hence the Minister's submissions in response endeavoured to cover the field. 22 The matters referred to in the letter do not establish a case of bias, assuming such a complaint is made. It was not articulated in terms. "Negative" decisions may be given because the particular circumstances of the case call for such a decision. The matters referred to in the letter do not establish that RRT came to this matter with a closed mind. Apparent inconsistencies between the decision in this case and decisions of differently constituted tribunals may be explicable upon the basis that the facts in each case were different, or upon the basis that different members took a different view of the facts. 23 In the present case Ms O'Brien did not refer to her own earlier decisions on applications by Russian Jehovah's Witnesses, or to decisions of other RRT members on such applications. But there is no particular reason why she should do so, bearing in mind that the issue for her determination was whether RRT was satisfied on the materials before it that this applicant has a well-founded fear of persecution if returned to Russia. There is no error of law, or jurisdictional error in failing to refer to these other decisions: Vassilieva v Minister for Immigration & Multicultural Affairs [2001] FCA 733; Soboleva v Minister for Immigration & Multicultural Affairs [2001] FCA 528. Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 does not require RRT to enquire whether there ever was a time when Jehovah's Witnesses were persecuted in Russia, and if so, to establish when and how circumstances changed. What is required is RRT's assessment of the position at the present time. 24 Ms O'Brien accepted that in Russia today Jehovah's Witnesses may attract hostility or even minor verbal or physical abuse at the hands of elements in the Russian population. But she was not satisfied that Jehovah's Witnesses are denied adequate state protection for reason of their religion. In the introductory section of its reasons RRT said: "The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality." 25 The notion of adequate state protection does not require that the state must be able to guarantee the safety of the person or that the person will be immune from harm; rather the question is whether there is a reasonable willingness on the part of law enforcement agencies and courts to detect, prosecute and punish offenders: Minister for Immigration & Multicultural Affairs v Tas [2000] FCA 1675 [55]. If protection is available from the country of nationality, fear of persecution is not well-founded: Minister for Immigration & Multicultural Affairs v Prathapan (1998)86 FCR 95, 100. 26 Ms O'Brien accepted that the applicant was involved in some incidents in which he was assaulted but: "... independent country information, including from the Jehovah's Witnesses themselves, does not suggest that Jehovah's Witnesses are denied adequate state protection for reason of their religion." The fact, assuming it to be a fact, that in the other six cases which Ms O'Brien heard the applicants complained of some form of ill treatment attributable to their religion, does not mean that Ms O'Brien came to an erroneous decision in the present case. Still less does that fact, assuming it to be a fact, reveal any reviewable error. 27 The application should be dismissed with costs. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

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