NAHW v Minister for Immigration and Multicultural and Indigenous Affairs

REASONS FOR JUDGMENT 1 This is an appeal from orders made by a Federal Magistrate dismissing an application for review by the appellants in respect of a decision of the Refugee Review Tribunal (the "Tribunal") which affirmed the decision of a delegate not to grant protection visas. 2 The matter was heard by me, in the appellate jurisdiction of the Court, sitting as a single Judge, pursuant to a direction of Beaumont ACJ made on 6 November 2003. 3 The appellants are husband and wife. They are citizens of the Ukraine. The Tribunal expressed the view in its reasons that the appellants "impressed as thoroughly genuine young people"; that "neither exaggerated their claims"; and that they "gave their evidence without evasion or equivocation"; that this "evidence was plausible and internally consistent"; and that the Tribunal had no reason to doubt the credibility of the evidence "of either applicant". 4 For ease of comprehension, given the dictates of s 91X of the Migration Act 1958 (Cth) ("the Act"), I will refer to the appellants as the husband and the wife or the husband appellant and wife appellant. 5 The husband was born in 1969 and the wife in 1974. 6 The husband was a member of the student union at Karkov Polytechnic Institute during his studies between 1991 and 1996. The wife became involved with the same student union in 1996. They edited a newspaper, which led them into conflict with the authorities. 7 The Tribunal summarised these claims and evidence in [21] to [33] of its reasons as follows: [21] In 1997 the Wife joined the Jehovah's Witnesses. She then became involved with religious issues while her husband concentrated on political issues. Other religions tried to interfere with the activities of the Jehovah's Witnesses. According to the Wife the Greek Catholic Church in western Ukraine exerted political influence at the local and regional level and pressured local officials not to register non native religious organisations or to allow them to rent or purchase property. [22] A 1993 amendment to the 1991 law on the Freedom of Conscience and Religion restricts the activities of non native, foreign-based, religious organisations. The amendments redefined the permissible activities of members of the clergy, preachers, teachers and foreign representatives of foreign-based religious organisations. [23] The high moral stands which the applicants demanded and their exposure of the wickedness of the authorities generated hatred. The Husband became the target of political activists while the Wife's membership of the Jehovah's Witnesses company fuelled the hatred of their opponents. [24] From 1996 until 2000 the Husband was engaged in the routine everyday activities of the Union. A number of other members of the Union became members of the Jehovah's Witnesses company. [25] In the year 2000 and in the aftermath of the death of the journalist Heorhy Gongadze, the Husband organised student demonstrations. The formation of a form for National Salvation led to the Union demanding the resignation of President Kuchma. There were demonstrations and rallies in Lviv, Kiev and other Ukranian cities. [26] Both applicants were engaged in training youths for participation in demonstrations and rallies in cities of western Ukraine. Young men were trained as guards of the tent camps. [27] The deteriorating economic situation, burgeoning criminality, deterioration in law and order and high unemployment were local issues which led the student union to political activism. In late 2000 with looming parliamentary and presidential elections, the Student Union of which the Husband was a member was seeking a political party to which they could ally themselves. [28] The assassination of the journalist Mr Gongadze led to an upsurge in protest rallies. The Husband's group took part in those rallies; (sic) [29] On 3 December 2000 together with some 15 other people the Husband arrived in Lviv to attend a major rally. The Husband's group were approached by a police patrol as they were leaving the railway station. In exchange with police officers which followed the Husband and three other persons were required to go to the local police station for questioning. After four hours the Applicant and his companions were released without mistreatment and without charge. [30] On 18 December 2000 a large group of members from the Student Union of which the Husband was a member went to the city of Kiev to attend a large rally. Although the Husband did not suffer any mistreatment he was concerned that State media spread misinformation about the rally, portraying the participants as hooligans who, inter alia, had interfered with the running of the city whereas the truth was that the rally had been orderly and without vandalism; (sic) [31] On the 25th December 2000 the members of the Students Union, including the Husband, went to the town of Truskavets with the intention of picketing a hotel to be visited by the President. Upon entering the town the group was stopped by Traffic Police. After ascertaining the reason for their visit, their group was required to attend the police station. At the police station members of the group were charged with offences relating to their attending a rally without the permission of the proper authorities. Having been separated from his companions the Husband was questioned and in the course of an exchange with an SBU officer the Husband was struck once in the kidneys. The Husband was threatened with further charges and forbidden to attend any public events. [32] It was put to the Applicant that if he were to act as a police informer his business could benefit from police patronage. The Husband refused. The Husband was then given an official warning about further participation in anti-state activities. The Husband was warned that if he did not obey the direction of the security police, a criminal investigation would be launched against him. A friend of the Husband advised him to leave Ukraine; otherwise he could share the fate of the dead journalist. [33] Concerned about the future pressure from the police or the SBU or possibly being assaulted in the street, the Husband, the Wife, and their son left their home and went to live with relatives over the Christmas/New Year period in 2000. Through her work in the travel agency the Wife was aware of a tour leaving Ukraine on 5 February 2001. Leaving their son with his paternal grandmother the Wife and the Husband left for Australia. 8 The Tribunal rejected the claims of the appellants. First, as to the wife's claims, the following conclusions were drawn: [37] The case of the Applicant wife rested primarily on her claim that she had been persecuted in the past for her membership of the Jehovah's Witnesses in Ukraine and also because of the involvement of her husband with a Students Union in Drogobych near Lvov in Western Ukraine. [38] I have no doubt that the Wife is of the Jehovah's Witnesses faith and I am quite satisfied that she takes seriously the tenets of her faith including the requirement that she not be involved in politics. On her own admission she has not involved herself in politics since she became a Jehovah's Witness. On her own admission at the first hearing she, personally, has not suffered persecution for the reason of her political opinions. Also, on her own admission at the first hearing she, personally, has not suffered any mistreatment in Ukraine for the reason of her religion. Accordingly, I am not satisfied that the Wife has suffered Convention based persecution in the past. [39] Since the Wife placed no evidence before me which might support a claim that she has cause to fear future serious harm in Ukraine for the reason of her religion and there is no prospect that she will involve herself in politics in the foreseeable future, I am not satisfied that there is a real chance that she faces future Convention based persecution in Ukraine. I am not satisfied that any fears the Wife may have on her own account of persecution in Ukraine are well founded. [40] There is no evidence before me to suggest that the Wife would be prevented from practicing as a Jehovah's Witness upon her return to Ukraine and I so find. 9 The Federal Magistrate saw no jurisdictional error in the drawing of these conclusions. I agree. I cannot see any. The notice of appeal contained no grounds in respect thereof. The submissions filed on 15 October 2002 make no coherent attack on this rejection of the wife's claims. No oral submissions were directed thereto. 10 As to the husband's claims, it was clear before me that the appellants' primary concern is their fear of the SBU (the successor organisation in the Ukraine to the KGB). That matter was the focus of the argument before me. 11 The Tribunal accepted the husband's account of his experiences, but concluded: …I am not satisfied that the sum of the Husband's experiences amount to the serious harm and systematic and discriminatory conduct now necessary to qualify as persecution in Australia. I take this view for several reasons. 12 Since the Tribunal "accepted the account of the experiences of the husband", it is necessary to identify those experiences. I will then examine the more important of the "several reasons" referred to by the Tribunal in this passage. I have had regard in particular to the document being entitled "Statement 3", which was lodged with the Tribunal on 17 October 2002. The evidence given to the Tribunal in the form of a tape recording or transcript was not placed in evidence before the Federal Magistrate, or before me. 13 The husband's statement contained the following information: a) At first he and his wife were not engaged in politics. b) They became concerned about the economic and political condition of the Ukraine, including the spread of corruption. c) They engaged in social and humanitarian activity such as organising youth employment, business tuition and creating small business. This activity at the students' union involved them in being subject to some harassment. d) In 2000, the husband together with some friends met the deputy chairman of a political party called "Motherland" in Dnepropetrovsk. e) The husband and others then began some support for the "representatives of the NRU" in their region. f) An assassination of a journalist, Heorhy Gongadze, took place in 2000. He had alleged high-level corruption. He was found in a forest 75 miles from Kiev, decapitated. g) After this assassination, protest rallies were held in L'viv in which the husband and his colleagues participated actively. h) On 3 December 2000, the husband with fifteen others were in L'viv for a protest rally. They were approached by police and some, including the husband, were ordered to attend the local police station after being accused of being "rude to the representative of the authorities". They were released after some hours, without any harm being inflicted on them and without charge. i) The husband learnt that this was a tactic used by the police or others to disrupt attendance at protest rallies. j) On 18 December 2000 the husband and others from the students' union went to Kiev for a large rally of some 100,000 demonstrators. k) A week later on 25 December 2000 the husband and a group of about thirty colleagues went to Truskavets to demonstrate. The President of the Ukraine was thought to be there on a visit. Once again, the husband and others were taken to a police station. This time they were charged with holding a rally without permission. The husband was kept alone for an hour and then an SBU major questioned him about his organisation. He answered these questions. Another man entered and became abusive. The husband described what then happened in his statement, as follows: I my turn I asked him why they could so easily arrest us, interrogate if we really were in a democratic country. In a few minutes another man entered the room. He did not introduce himself but asked the major straight away how the interrogation was going on. When he listened to all the stuff he started shouting at me and abusing me. He promised that very soon with such persons, as myself the order would be introduced. I was unlucky to reply that it would have been better if they maintained order with criminality, which overwhelmed the country, and I was an honest man. That enraged him, he made me stand up, turn to the wall and put hands against it. He then hit me against the kidneys. It was very painful. He did not allow me to sit down and only let me stand face to the wall. He went on shouting saying that I had made a great mistake and that my way to prison is only the question of time. When the major said that it was likely that against me as one of the orgainsers charges in activities aimed at undermining activities of the officials (Section 344 of the Criminal Code) would be laid. I was banned from participation in any public events. In an hour they let me go. I did not know what to do and where to seek protection. l) Three days later the husband was picked up by SBU agents and taken to the SBU major who had earlier interrogated him. The major spoke to him about demonstrators being manipulated by politicians and about things improving if people such as the husband would not interfere, but rather help. The major offered inducements of patronage to the husband's business if he signed a paper agreeing to co-operate with the police, that is, if he became an informer. The husband described what then happened in his statement, as follows: I could not do that because I realized from the time of signing I would not belong to myself any more. Let my profits be not so big but instead I will be able to socialize with my friends and loved ones, to go out together with my wife and do not be afraid to look people in the face. I told the major about that. He was disappointed with my words and he replied that I made a mistake once again but much more serious that time. He was not going to create a martyr out of me, to lay some official charges - that was not their business. But I would still beg him on my knees about an appointment, not mentioning any reward. After that he scribbled on scrap of paper a phone number and said that I memorized it. I would be told when to get in touch with him using that number. That was my last chance, no more talks. I was let go. m) The husband then described his fears in his statement, as follows: I did not know what to do. It was impossible to live and work expecting everyday danger: probably it might be criminals who would beat and rob either you or your wife in the dark street, or vigilant Customs officer would find a but of drug which had been planted into your luggage, for that you would serve guaranteed seven to ten years jail term. Who will help me and how can I prove my innocence then? I could not ask for help and could not seek any advice, as I was afraid that SBU would get to know about that. But still I entrusted myself to a man. He was my old friend; he was much older than me and had a huge life experience. He advised me to go into hiding at least for the time being; probably something would change later. In two days the New Year arrived, the Christmas came up. Together with my wife and our kid we went to one and then to another relatives, it gave us a bit of relief. But at last holidays had come to an end and I face the same problem again. Then after discussing it with my wife I decided to apply for a trip to Australia, which was going to happen on the 6th of February 2001. On the 5th of February 2001 we left the country. I could not forgive those people my humiliation and because of that just before our departure I passed on the audiocassette with the story of what had happened to me to my friends. Maybe it will help someone and for someone it will be an indirect proof of innocence. 14 The reasons given by the Tribunal for concluding as it did (see [11] above) that the husband did not have a relevant well-founded fear were as follows: [43] First, the Applicant was detained by police for relatively brief periods on only two occasions over a period of several years. [44] Second, the Husband is not a person who has any established political profile as a member of an anti government party. There is no evidence to suggest that he was personally targeted because he had come to the adverse attention of either the government or any government instrumentality. Rather, the Husband was caught up on two occasions in the random detention by police of persons suspected of taking part in an unauthorised rally or demonstration. There is evidence from the Husband to suggest that he and his friends were technically in breach of a law of common application in Ukraine, namely the requirement that persons seeking to hold a rally obtain prior police approval. The Husband does not suggest that prior police approval was obtained. [45] Third, it would appear from the evidence of the Husband that what particularly concerned him and what appears to have been the catalyst for his coming to Australia was the pressure put upon him by the SBU to provide information in the future about proposed illegal rallies. Since I conclude that the SBU was only interested in being informed about illegal rallies rather than the particular political views of the Husband and his friends, I am not satisfied that while the subjective fears of the Husband in this regard may be genuine, they are Convention related. [46] Fourth, at the hearing I put to the Husband that it seemed to me that his problems were easily solved by his ceasing to give up any involvement in politics. The Husband did say that if he went back it would be difficult for him not to be involved because there will be elections in 2003. However, in my view there is nothing to prevent the Husband from engaging in the political process in Ukraine should he so choose through the peaceful expression his political opinion. Various political parties and groups operate legitimately in Ukraine and are free to promote political views in accordance with Ukrainian law. I am not satisfied on the evidence before me that the Husband would be prevented from expressing his political opinion in such a way that it could be said to amount to persecution. [47] In summary, I am not satisfied on the evidence before me that the Husband has experienced persecution for Convention reasons in the past or that there is a real chance that he will face Convention based persecution in the foreseeable future upon his return to Ukraine. His fears are not well-founded. Therefore, the Husband does not satisfy the Convention definition of a refugee. 15 The Federal Magistrate found no error in this approach. Further, an argument based on Muin v Refugee Review Tribunal (2002) 190 ALR 601 was dismissed. The appellants failed to lay any factual foundation for this complaint based on Muin and no argument was advanced before me to challenge this conclusion. 16 The Federal Magistrate rejected the argument that there was no evidence to justify the conclusion of the Tribunal. I agree that this complaint is misconceived. There was material available to the Tribunal. 17 However, I do conclude that the Tribunal misdirected itself in a number of ways. First, it erred in the way it dealt with s 91R of the Migration Act 1958 (Cth). Section 91R is, relevantly, in the following terms: (1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless: (a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and (b) the persecution involves serious harm to the person; and (c) the persecution involves systematic and discriminatory conduct. (2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph: (a) a threat to the person's life or liberty; (b) significant physical harassment of the person; (c) significant physical ill-treatment of the person; (d) significant economic hardship that threatens the person's capacity to subsist; (e) denial of access to basic services, where the denial threatens the person's capacity to subsist; (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist. 18 The serious harm that is referred to by s 91R is that of which the applicant for protection claims to have a well-founded fear. It is not the harm which the applicant says that he has suffered in the past. Of course, as the High Court has stated, the past is very often a helpful guide to the future; but s 91R and Article 1A are directed to the future and the question whether the applicant for protection has a well-founded fear of persecution for a Convention reason should he or she return to the relevant country. 19 The Tribunal, when identifying its task in the early part of its reasons, correctly identified this question. However, when coming to apply the question, the passage referred to at [11] above indicates that the Tribunal looked at the past, said that those past events did not amount to serious harm of a kind "now necessary to qualify as persecution". This is to ignore what the husband said about the future. If all the husband said that he expected in the future was unpleasant, but essentially harmless, police harassment of the kind that happened in early December 2000 there could be little argument with the Tribunal's conclusion as a question of fact. But that is not what he said he feared. He feared (and his fears were found to be subjectively genuine) that the successors to the KGB would take retribution on him. He described those fears: see [13(m)] above. It is hard to see that as other than serious harm conceivably well within s 91R; though, of course, that is a question for the Tribunal. 20 This error in approach, however, might not perhaps be seen as causative of any ultimate error if the Tribunal's third reason recited at [45] of its reasons above is sound: see [14] above. If one can discount the husband's fear of the SBU recrimination for refusing to become an informer as fear for a non-Convention reason one may, perhaps, set that fear to one side. 21 Section 91R(1)(a) requires that the reason is the essential and significant reason. The Convention, relevantly, states: owing to a well-founded fear of being persecuted for reasons … of political opinion 22 The phrase "for reasons of" was discussed in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225. The phrase connotes a causal nexus between the reason and the fear: see Applicant A at 232-4, 240, 257, 284. The causal nexus is related to the motivation for the infliction of the harm that is feared: Applicant A at 284; and Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565, 568. 23 The third reason ascribed by the Tribunal in [45] of its reasons (see [14] above) has its difficulties. The second sentence appears to involve the proposition that because the police do not want to know about the husband's own political opinions then the feared harm for refusing to become an informer is not a Convention reason. That does not follow at all. The SBU's interest in illegal rallies may be because of its interest (as an agent of the government) in the politics at those rallies or merely as a law enforcement agency interested in knowing when the law (in respect of obtaining permission for the rallies or otherwise) might be broken. That enquiry was not made by the Tribunal. The Tribunal appeared to conclude that because the SBU was not interested in the husband's own political opinions, his fear of harm from the SBU could not be for a relevant Convention reason. The husband, however, was arrested because of a connection with his political opinions. His opinion caused him to be at these rallies. His politics and his attendance at rallies of this kind (probably generally illegal) made him a natural object of the major's request. He was being asked to be an informer because he had these opinions which took him to these kinds of rallies. 24 Even if the SBU were only interested in being informed about illegal rallies, that the SBU might take action against the husband for not wishing to become an informer could amount to harm for a Convention reason if he has been picked out as a recruit to be an informer for his political opinions and if he will or may suffer harm because, as someone so chosen and with those opinions, he refuses to co-operate. 25 By positing a conclusion that does not flow from the premise, the Tribunal has failed to consider fully the possible consequences of his refusal of the SBU offer and its relationship, in the sense that I have identified, to the husband's political opinions and the operation of Article 1A of the Convention. In that respect, the Tribunal has not completed its task to address Article 1A. 26 The fourth reason ascribed by the Tribunal in [46] of its reasons (see [14] above) also has its difficulties. As a free-standing group of factual propositions it may be, in a sense, unexceptional. The first sentence of [46] of the Tribunal's reasons, however, gives rise to a difficulty of the kind dealt with by the High Court in Appellant S 395 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; 203 ALR 112. There, at least two, and possibly four, members of the Court appeared to conclude that a well-founded fear of persecution was made out if the claimant would modify his or her behaviour upon return to the country in question by reason of the fear of the threat of harm (even, it would appear, where that modification of conduct would lead to safety from the infliction of harm): Appellant S 395 at [43] and [48]-[50] per McHugh and Kirby JJ, and [78]-[83] per Gummow and Hayne JJ. Certainly, all four members of the majority, focussed upon the testing of the well-founded fear by reference to how each person is "free" to act or is "entitled" to act in the country in question: Appellant S 395[44] and [83]. The standard (domestic or international), by reference to which one is to judge this, was not identified by their Honours, other than the fact that the standard was not the law or expectations of the country of nationality or its community. 27 The first sentence of [46] of the Tribunal's reasons would lead one to conclude that the Tribunal was expecting the husband to modify his behaviour. The second sentence of [46] would indicate that that is how the husband understood the Tribunal's comment at the hearing. It is unclear whether the balance of [46] is expressed on the premise of some form of modification to the husband's future conduct by way of expression of political opinion. On balance, it would appear that some modification was expected to occur, but not such as to amount to persecution. The difficulty with this positing of any modification is that the full and unmodified expression of the husband's political opinion and especially if he wishes to go to illegal rallies, may lead him into contact, once again, with the SBU. He fears them for his refusal to become an informer. The Tribunal has not examined the husband's position with Appellant S395 in mind; nor has it assessed the husband's position by reference to modified or unmodified expression of political opinion in the light of the possibility of encountering the SBU again. 28 Thus, in my view the Tribunal has not approached the husband's claims completing its jurisdictional task to analyse them according to the Convention. First, it has posited what I think is a non sequitur to conclude that his fear of the SBU is for a non-Convention reason. Secondly, it has failed to assess the husband's position on the hypothesis of his conducting himself, as he should be seen to be "entitled" or "free" to do. Thirdly, it has failed to take into account the consequences of that behaviour (being that which he is "entitled" or "free" to do or even the posited modified behaviour) and its relationship with the conduct or possible future conduct of the SBU. 29 The submissions of the appellants asserted bias on behalf of the Tribunal. There is no basis for such a claim. 30 Other matters were dealt with by the Federal Magistrate such as a claim that insufficient research had been undertaken by the Tribunal. No submissions were put forward to substantiate this argument. I reject it. 31 No ground is made out to challenge the decision as to the wife's claims. Her position, however, no doubt will be affected by the claim of her husband if ultimately successful. 32 In the circumstances, I will delay making orders, so as to allow submissions on the precise form of orders. The orders that I would consider making, subject to hearing the parties, are as follows: (a) the appeal in relation to the male appellant be allowed; (b) the orders of the Federal Magistrates Court of Australia made on 9 July 2003 be set aside in so far as they relate to the male appellant; (c) in lieu thereof, (i) it be declared that the decision of the Refugee Review Tribunal made on 14 November 2002 in relation to the male appellant was made in excess of jurisdiction; (ii) it be ordered that a writ of certiorari issue to quash said decision in relation to the male appellant; (iii) it be ordered that the respondent be prohibited from dealing with the appellants on the basis of the decision as to the male appellant's claim for a protection visa being valid or authorised by the Migration Act 1958 (Cth). (d) the respondent pay 75% of the costs of the appeal and the costs of the hearing before the Federal Magistrates Court. 33 I direct that the respondent bring in a draft form of order. I will hear the parties on costs. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop .