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Federal Court of Australia |
Last Updated: 14 October 2004
FEDERAL COURT OF AUSTRALIA
QAAX of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1329
MIGRATION – protection visas - appeal from
the decision of the Refugee Review Tribunal to affirm the decision to reject the
application
for protection visas – citizens of the Russian Federation
– Jehovah’s Witnesses – refusal of local officials
to register
Jehovah’s Witness Church – raids by police of Jehovah’s
Witness Church meetings – whether the
Tribunal properly considered the
claim of the applicants – whether jurisdictional error
shown
Judiciary Act 1903 (Cth) s 39B
Migration Act
1958 (Cth) ss 36, 91R, 424
Convention Relating to the Status of
Refugees (1951) Article 1A(2)
Minister for Immigration and
Multicultural Affairs v Kandasamy [2000] FCA 67 referred
to
QAAX OF 2003 and OTHERS
v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and REFUGEE
REVIEW TRIBUNAL
No Q 202 of 2003
SPENDER
J
BRISBANE
14 OCTOBER 2004
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QAAX OF 2003 & ORS
APPLICANTS |
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AND:
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MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS
AFFAIRS
FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT |
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DATE OF ORDER:
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WHERE MADE:
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THE COURT ORDERS THAT:
1. A writ of certiorari issue to quash the decision of the second respondent dated 4 November 2003.
2. A writ of mandamus issue to the Refugee Review Tribunal requiring the Tribunal to rehear and decide the applicants’ application according to law.
3. The respondent pay the applicants’ costs of and incidental to this
application, to be taxed if not
agreed.
Note: Settlement and entry of orders is dealt
with in Order 36 of the Federal Court Rules.
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AND:
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REASONS FOR JUDGMENT
1 This is an application pursuant to s 39B of the Judiciary Act 1903 (Cth) ("the Judiciary Act") seeking, amongst other things, the following orders:
(a) A writ of certiorari quashing the decision of the second respondent, Refugee Review Tribunal ("the Tribunal") dated 4 November 2003, (handed down 2 December 2003), to affirm the decision of the first respondent’s delegate rejecting the applicants’ application for protection visas;
(b) A writ of mandamus requiring the second respondent to rehear and decide the applicants’ application according to law.
2 The applicants are husband and wife and a son (born 15 May 1988) of the wife. Each of the applicants is a citizen of the Russian Federation.
3 The applicants obtained passports on 10 December 2002 and arrived in Australia on 12 January 2003. They lodged an application for Protection (Class XA) visas on 3 February 2003. On 13 March 2003 a delegate of the Minister rejected the applicants’ application for protection visas and the Tribunal on 4 November 2003 affirmed that decision.
4 Section 36 of the Migration Act 1958 (Cth) ("the Act") provides for protection visas:
‘(1) There is a class of visas to be known as protection visas.
(2) A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or
(b) a non-citizen in Australia who is the spouse or a dependant of a non-citizen who:
(i) is mentioned in paragraph (a); and (ii) holds a protection visa.’
5 Article 1A(2) of the Convention Relating to the Status of Refugees (1951) defines a refugee as a person who:
‘... owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.’
6 Article 33(1) of that Convention provides:
‘No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.’
7 Section 91R of the Act provides:
‘(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.
(3) For the purposes of the application of this Act and the regulations to a particular person:
(a) in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;
disregard any conduct engaged in by the person in Australia unless:
(b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.’
8 The grounds for this application are:
1. The Tribunal failed to consider whether the refusal of local officials to register the Jehovah’s Witness Church, resulting in raids by police on meetings conducted by members of that Church, could amount to persecution by the State, despite "religious persecution not being officially condoned by the Russian authorities".
2. The Tribunal erred in deciding, as a matter of law, that "there cannot be a failure of State protection where the authorities have not been given the opportunity to respond to the harm suffered by the applicants".
3. The Tribunal failed to understand that the relevant issue was not whether protection from the State "might reasonably have been forthcoming if the applicants had sought that protection" but whether there was effective protection by the State.
9 This application is concerned, as those grounds indicate, with a claim by the applicants that the applicants are entitled to protection visas on the basis of a well-founded fear of persecution in Russia as a consequence of their being members of the Jehovah’s Witness Church.
10 There is no evidence as to precisely when the female applicant (who I will refer to hereafter as the applicant) became a member of the Jehovah’s Witness Church, although it may have been during a trip to the United States from July to December 1997. The evidence before the Tribunal is that when the applicant returned to Russia she attended meetings of the Jehovah’s Witness Church in her town of Bryansk. The applicant and the male applicant married on 16 February 2002.
11 The reasons for decision of the Tribunal indicate that the applicant was directed to provide further information concerning her claim of persecution, the direction being issued pursuant to s 424 of the Act.
12 The Tribunal noted:
’14. The applicant responded to the s.424 notice by letter dated 12 August 2003. In that letter, the applicant states that she first became acquainted with the Jehovah’s Witness Church during her trip to the US in July 1997 and began to attend meetings there on a regular basis. On her return to Russia she attended meetings of the church in her own town, at the houses of other members. The applicant claims that at one of those meetings, the neighbours informed the authorities of the meetings. When an official came to inspect one of the meetings, he told the applicant and her fellow adherents that because their organisation was not registered in the town they did not have the right to conduct meetings. The applicant claims that they continued to conduct meetings despite this warning and that on 1 November 2002 a meeting was broken up with force, resulting in her husband being beaten and breaking a rib. When the applicant tried to restrain the officials from beating her husband, she was restrained with handcuffs and detained in custody for six days, finally being released after intervention by her husband and their attorney.’ (Emphasis added)
13 The reasons record the claim by the applicant that ‘the central Russian authorities do not have the capacity to defend them from intimidation and humiliation by local officials in their town.’
14 It is relevant to set out the Tribunal’s view of the claims of the applicant concerning religious persecution:
‘19. At the hearing I asked the applicant whether her church was officially registered in her town and she responded that only the Baptists are registered, that it is necessary to pay bribes to local officials to get registered, that the leader of their congregation had tried unsuccessfully to register their church. I asked the applicant what difficulties, if any, the lack of registration caused in her practise of her religion and she stated that she had been arrested and detained following the raid on one of the meetings in November 2002. I asked how many members were in her congregation and she stated that there are 118 members. She stated that recently they had managed to rent premises for their meetings but prior to this had been obliged to meet in the houses or apartments of members.
20. I asked the applicant a number of questions in relation to the raid in November 2002. In response the applicant stated that there were about 40 or 45 people present, that two local police officers had attended, probably in response to a complaint by a neighbour, that only she had been arrested because only she resisted the police when one of them hit her husband with his baton, that the reason she was arrested was because the police alleged she had assaulted them, she was held under a "protocol for administrative disorder" and sentenced administratively (that is, without court proceedings) to 15 days’ detention but her husband and lawyer paid the fine and she was released after six days. I asked what the police officers had said when they broke up the meeting and she stated that the police said they could not meet at the house, probably because a neighbour complained but she told the police that she and her fellow adherents had been quiet. She claimed that the police were "prejudiced" and when I asked what they had said she replied that the police were aggressive. I asked if the police officers had made any comments about her religion and she responded that she did not think it had anything to do with being Jehovah’s Witnesses, that they had an order to disperse the meeting and they did it violently. She agreed that her church continued to meet for religious purposes after the raid. I asked if she had reported the excessive force used by these police officers and she stated that she thought about doing so but that other members of her congregation convinced her to endure the suffering and to forgive their persecutors.
...
24. I put to the applicant and her husband the independent information available to me that the Jehovah’s Witness organisation has stated that there is no official persecution of Jehovah’s Witnesses in Russia, but that there can be problems with individual officials on a local level, and the applicant responded that there may not be official persecution but that the attitudes of people are hostile. I put to the applicant and her husband that there are avenues for protection and redress in Russia for people who experience religious discrimination or persecution and asked whether they had ever tried to access protection in this way. The applicant responded that although she is aware there are national laws in relation to freedom of religion, it would be impossible in her town because it is small and everyone knows everyone else.’
15 The Tribunal noted:
‘According to an official of the Watch Tower and Bible Tract Society of Canada there is no official persecution of Jehovah’s Witnesses in Russia, although "there may still be isolated cases of individuals persecuted for their religious beliefs by local authorities or members of the public who are acting independently".’ (Emphasis added)
16 The Tribunal quoted from a report of the US Department of State concerned with international religious freedom in Russia in 2002, which report noted:
Although the Constitution also provides for the equality of all religions before the law and for the separation of church and state, in practice the Government does not always respect the provision for equality of religions, and in some instances the authorities, primarily at the local level, imposed restrictions on some religious groups.’
and the report instanced problems registering Jehovah’s Witness organisations in a number of locations.
17 The Tribunal expressed its central findings and reasons as follows:
‘38. I accept the independent information that religious persecution is not officially condoned by the Russian authorities. Given that the applicants have never made any attempt to seek protection or redress for the episodes of religious persecution they claim to have experienced, I am not satisfied that the protection offered by the State against religious persecution is at such a level of ineffectuality as to give rise to a real chance that the applicants would be persecuted, and I rely on the reasoning in Thiyagarajah, Prathapan and Efimcova cited above. In accordance with the reasoning of the Full Federal Court in MIMA v Kandasamy, there cannot be a failure of State protection where the authorities have not been given the opportunity to respond to the harm suffered by the applicants, and I accept the independent information that effective protection, which need not be an absolute guarantee against harm, is available in Russia and the Russian government does not encourage, condone or fail to provide effective protection against harm caused by religious persecution. I am satisfied that protection might reasonably have been forthcoming if the applicants had sought that protection.
39. But in any event, I am not satisfied that the incident when the applicant was detained and her husband was hit with a baton was motivated by religious persecution. Even in their own evidence, the applicants suggested that the police overreacted to a complaint, possibly of noise, by neighbours but that they did not say anything or do anything which indicated that they were inflicting harm because of the religious beliefs of the applicant or her husband.’
18 The central findings expressed in those reasons are that the Tribunal was not satisfied that the incident where the applicant was detained and her husband was hit with a baton was motivated by religious persecution, and the Tribunal was unable to be satisfied that there was a real chance that such an incident would happen again if they returned to Russia. The Tribunal also found that, given that the applicants had never made any attempt to seek protection or redress for the episodes of religious persecution they claimed to have experienced, the Tribunal was not satisfied that the protection offered by the State against religious persecution is at such a level of ineffectuality as to give rise to a real chance that the applicants would be persecuted. The Tribunal further found that there cannot be a failure of State protection where the authorities have not been given the opportunity to respond to the harm suffered by the applicants.
19 In my opinion, it is clear that the Tribunal focused on the incident where the applicant was detained and her husband hit with a baton by police officers. There seems to have been misunderstanding, or a failure to appreciate, that the applicants’ claims were much broader than that.
20 The broad claim of the applicants was that the police raid in the course of which the husband was beaten and the wife detained, occurred because the Jehovah’s Witness Church was not registered and that the members of the church had no right to conduct meetings in Bryansk because the church was not registered; that local officials in the town had refused to register the Jehovah’s Witness Church and told its adherents that they had no right to practise their religion; and that there was independent evidence before the Tribunal, to which the Tribunal itself referred, that some authorities at a local level imposed restrictions on the Jehovah’s Witness Church, including refusing to register it.
21 In my judgment, the Tribunal failed to consider whether there was a refusal by local officials to register the Jehovah’s Witness Church, and that the raid by the police of which the applicants complained was connected with the fact that the church meeting was unauthorised because the church was not registered, and the violent breaking up of the meeting as a consequence of it being unauthorised amounted to persecution for reasons of religion.
22 The failure by the Tribunal to consider what were the claims of the applicant is demonstrated, in my opinion, by the statement by the Tribunal that ‘there cannot be a failure of State protection where the authorities have not been given the opportunity to respond to the harm suffered by the applicants.’ The failure by the applicants to give the authorities the opportunity to respond does not arise where the claim is that there is persecution for reasons of religion, and further it is alleged that the agents of the State are the persons themselves carrying out the persecution.
23 The claim by the applicants is that the persecution to which they were subjected was the consequence of the combination of the refusal by local officials to register the Jehovah’s Witness Church, and the conduct of the police in breaking up the unauthorised church meeting.
24 Minister for Immigration and Multicultural Affairs v Kandasamy [2000] FCA 67, which was referred to by the Tribunal, is a case which involved alleged persecution by a private organisation and was concerned with the ability of the State to provide protection against that persecution. It has no relevance in the present case. The assertion by the applicants in the present case was that the persecution which they feared was the acts of agents of the State, namely the local officials who refused registration and the police who, it is claimed, broke up the church meeting because it was unauthorised.
25 While there was material before the Tribunal indicating that ‘religious persecution is not officially condoned by the Russian authorities’, the evidence also suggested that there were instances of religious discrimination by local officials. In my opinion, if religious persecution by local officials was a real risk, that persecution would fall within the Convention.
26 In my judgment, the Tribunal failed to consider what was in truth the claim advanced by the applicants. The claim was that local officials denied to the applicant and her fellow adherents the right to conduct meetings of the Jehovah’s Witness Church because they declined to register the organisation, and that the applicants could practise their religion only at the risk of having the meeting of adherents to the Jehovah’s Witness faith broken up with force. The Tribunal has failed to address the correct question and, in my opinion, that failure amounts to jurisdictional error.
27 For the above reasons, a writ of certiorari should issue to quash the decision of the second respondent dated 4 November 2003, which affirmed a decision of a delegate of the Minister to reject the applicants’ application for protection visas, and a writ of mandamus should issue to the Refugee Review Tribunal requiring the Tribunal to rehear and decide the applicants’ application according to law.
28 The respondent should pay the applicants’ costs of and incidental to this application, to be taxed if not otherwise agreed.
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I certify that the preceding twenty-eight (28) numbered paragraphs are a
true copy of the Reasons for Judgment herein of the Honourable
Justice
Spender
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Associate:
Dated: 14 October 2004
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Counsel for the Applicant:
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Mr Darryl Rangiah
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Solicitor for the Applicant:
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Terry Fisher & Co Solicitors
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Counsel for the Respondent:
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Mr Peter Bickford
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Solicitor for the Respondent:
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Blake Dawson Waldron
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Date of Hearing:
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27 July 2004
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Date of Judgment:
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14 October 2004
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