SZBAK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 156 (1 March 2005)

Last Updated: 2 March 2005

FEDERAL COURT OF AUSTRALIA

SZBAK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 156

MIGRATION – no issue of principle involved


Judiciary Act 1939 (Cth) s 39B
Migration Act 1958 (Cth) s 424A, 476
Migration Legislation Amendment (Judicial Review) Act 2001 (Cth)


Vassilieva v Minister for Immigration & Multicultural Affairs [2001] FCA 733 cited
Aksahin v Minister for Immigration & Multicultural Affairs [2000] FCA 1570 cited






















SZBAK v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 1383 OF 2004


CONTI J
1 MARCH 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	1383 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZBAK APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	CONTI J
DATE OF ORDER:	1 MARCH 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant pay the respondent’s costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	1383 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZBAK APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	CONTI J
DATE:	1 MARCH 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

The Tribunal’s and the Federal Magistrate’s decisions below

1 The appellant has provided to the Court a substantial amount of material, including material impermissibly sent to the Court subsequent to the hearing. Nevertheless I have considered all of that material, much of it repetitive in substance. This is an appeal from the decision of Federal Magistrate Barnes made and given on 7 September 2004, whereby her Honour dismissed the appellant’s application purportedly brought pursuant to s 39B of the Judiciary Act 1939 (Cth) for review of the decision of the Refugee Review Tribunal (‘the Tribunal’) made on 1 July 2003. The Tribunal decision affirmed the decision of the Minister’s delegate made on 26 June 2001 not to grant the appellant a protection visa. As to background facts and circumstances to the present litigation, it is convenient to extract paragraphs [2] and [3] of Barnes FM’s reasons for judgment:

‘[2] The applicant claimed to fear persecution in the Ukraine for reason of his religion as a member of the Salvation Army. He claimed that he was beaten in April and May or June 2000 because of his involvement with the Salvation Army, a minority religion in Ukraine, and that although he reported the attack to the police nothing was done. He also claimed that when he received call-up papers for compulsory military service in April 2000 he sought an alternative to military service because of his religious beliefs and that this was refused by the interviewing army officer. He stated that he considered the Ukrainian army to be evil and amoral and was strongly opposed to conscription because of his religious beliefs. He claimed that he had consulted a member of the Salvation Army who told him that the Salvation Army leaves it to its members to decide for themselves whether to undertake compulsory military service. He claimed that according to the Ukrainian Constitution he was entitled to undertake an alternative form of service because he is a member of a religious group but that his application to carry out an alternative to military service had been refused. He claimed that a few days after an interview with the recruiting officer he was assaulted in the street not far from his home and he considered that this was because of his refusal to serve in the army. At the end of May 2000 a military officer together with police and soldiers came to his home one evening when he was not there. The purpose of that visit is unclear. Because of that visit he had left home and work. He had applied to the regional court on 22 May 2000 with respect to what he believed was his right to an alternative to military service. In July 2000 the regional court rejected his application to be permitted to undertake an alternative to military service. He decided he had to leave Ukraine.

[3] The applicant claimed that he did not intend to apply for a protection visa when he first arrived in Australia as he hoped further efforts by his mother to resolve the matter in Ukraine would be successful. He now believes the army would seek to punish him at all costs because he resisted military authorities and that he will be imprisoned for up to three years for refusing to undertake his military service...’

2 The appellant’s migration agent made post-hearing written submissions to the Tribunal by letter dated 21 April 2003. These submissions purported to provide the Tribunal member with additional information in relation to a number of issues allegedly raised at the hearing. The first issue identified in the letter was ‘[the Tribunal’s] assertion that the Salvation Army allows its members to serve in armies and does not oppose its members to be involved in war conflicts.’ The agent asserted that the Ukrainian army was engaged in ‘suppression and persecution’ rather than the defence of Ukrainian people and that in those circumstances, military service was not consistent with the Salvation Army’s ‘doctrines’. The letter went on to refer to numerous ‘independent’ sources of information by which the agent sought to establish that the army engages in human rights abuses in Ukraine, against both Ukrainian citizens and conscripted members of the armed forces. The second issue that the letter sought to answer related to the appellant’s application to the Regional Court in Ukraine by which he sought to enforce an alleged right under the Ukraine Constitution to engage in an alternative to military service. The agent provided more ‘independent’ information about the apparent absence of independence of the Ukrainian judiciary as well as to persons who were eligible for ‘alternative service’ owing to their status as members of minority religions, but who were nevertheless imprisoned by the Ukrainian government. Finally (and most significantly for the purposes of this appeal), the agent referred to a decision of the Tribunal made on the 6 February 2001 and handed down on the 27 February 2001 (N99/28142). In this decision, Member Keher found that the applicant, a Ukrainian who belonged to one of the minority religions recognised by Ukrainian law, was a person to whom Australia owed protection obligations under the Refugees Convention. It has always been accepted that the Salvation Army is not one of those minority religions recognised by Ukrainian law such that its participants are eligible for ‘alternative service’.

3 The Tribunal made its decision on 2 June 2003 and handed it down on 1 July 2003. The Tribunal member engaged in a lengthy consideration of the merits of the appellant’s application for a protection visa and made a number of findings which were summarised by her Honour Barnes FM in paragraphs [4] to [10] of her judgment, and which may be conveniently reproduced as follows:

‘[4] The Tribunal did not accept that the applicant had ever been a member of the Salvation Army. This finding was based on the limited extent of the work that the applicant claimed to have carried out for the Salvation Army in the Ukraine; his failure to produce material to confirm his membership of the Salvation Army or to contradict the finding by the delegate of the respondent that the Salvation Army did not oppose military service in the Ukraine and his failure to join the Salvation Army in Australia. Nor was the Tribunal satisfied that the applicant was attacked because of involvement with the Salvation Army, a minority religion in Ukraine, or that he had been bashed as a "sectarian". The Tribunal was unable to find any evidence of mistreatment of Salvation Army workers in the Ukraine. It accepted independent evidence that the Salvation Army operated in Ukraine without interference from the authorities.

[5] The Tribunal considered the applicant’s claim that he was first bashed in the apartment building in which he lived. Nothing was said to him in the course of the attack and nothing was stolen from him by two men who had been waiting for him. The Tribunal found that the applicant had produced no evidence that satisfied it that this was anything other than a random criminal assault. There was no evidence that satisfied it that he was attacked because of involvement with the Salvation Army. The Tribunal also considered the second occasion on which the applicant claimed to have been attacked (which at the hearing he said was in early May 2000 when he was on his way home after shopping locally). Again the Tribunal saw nothing in the evidence of the applicant to satisfy it that this was other than a random criminal assault. Although the applicant claimed that the word "sectarian" was used by one of the attackers, the Tribunal found that this may have been because the applicant mentioned that he was a non-smoker and sportsman rather than because of any suspected involvement of the applicant with the Salvation Army. The applicant wore no Salvation Army uniform, did not attend Salvation Army services and claimed to be a member of a very small group of Salvation Army members in his area who engaged in no more than charitable work. The applicant himself had conceded that he did not believe the assaults on him had been carried out by or at the behest of the military authorities. The Tribunal was not satisfied on the evidence before it that either of the assaults were for reason of his involvement with the Salvation Army.

[6] The Tribunal also considered the applicant’s claim that he had a conscientious objection to serving in the army because of his religious beliefs. It did not accept that such person would join the Salvation Army, as the applicant’s evidence as to the Army’s views about conscientious objection indicated that it did not oppose its members undertaking military service. The Tribunal also had regard to independent information about the involvement of the Salvation Army in service to the defence forces of the countries in which it operated. It did not accept that the Salvation Army in the Ukraine would be out of step with its parent organisation in the United Kingdom.

[7] The Tribunal accepted the applicant’s evidence that he did not wish to serve in the Ukrainian army and that the Ukrainian Constitution provided for alternative service for those for whom performance of military service was contrary to their beliefs, that the right to such alternative service was limited to listed religious denominations and that those persons of denominations not covered by that decree were not entitled to alternative service and must undertake military service. The Tribunal was not able to satisfy itself that the Salvation Army was a registered religion in the Ukraine. It accepted that the effect of the Ukrainian legislation was that the applicant was required to undertake military service in Ukraine. The Tribunal was prepared to accept that the effect of the current legislation was to discriminate against members of minority and unregistered religions but was not satisfied that this amounted to serious harm within s 91R of the Migration Act 1958. The Tribunal had regard to the fact that the applicant had unsuccessfully applied to the local court for an exemption from military service. However having regard to the Tribunal’s understanding of the policy of the Salvation Army (that it is not opposed to military service) the Tribunal was not satisfied that the applicant had a genuine religious conviction which would entitle him to an exemption from military service, or a valid reason to seek an alternative to military service.

[8] The Tribunal acknowledged that it may be that on return to Ukraine the applicant would be prosecuted by the Ukrainian authorities and required to complete his military service. The Tribunal did not accept that his personal perceptions of the army were a valid reason to avoid his service obligations. It was satisfied that any action taken against the applicant in this respect would not be for a Convention reason. The Tribunal was satisfied that the applicant faced prosecution not persecution.

[9] The Tribunal stated that it was fortified in the view it had taken of the applicant’s claims by his conduct on arrival in Australia. It had regard to the applicant’s 5 month delay in lodging an application for a protection visa, considered his explanation and concluded that such delay was inconsistent with the actions to be reasonably expected of a person who had fled his homeland because of a fear of Convention-based persecution.

[10] The Tribunal concluded that for all the above reasons it was not satisfied that, looked at individually or cumulatively the sum of the applicant’s past experiences amounted to serious harm constituting persecution for any Convention reason. The Tribunal was not satisfied that the harm the applicant feared from undertaking military service was for any Convention reason or that the applicant faced a real chance of Convention-related persecution upon his return to Ukraine. His claimed fear of Convention-based persecution was said not to be well founded. The Tribunal concluded that he was not a refugee.’

4 The applicant had sought review of the Tribunal’s decision by application filed in the Federal Magistrates Court on 28 July 2003. The application raised four grounds for review which were reproduced in the judgment of Barnes FM in paragraph [12], and which may be conveniently again reproduced:

‘1. The Tribunal can not dismiss the applicant’s key claims, eg the claim he has been a member of the Salvation Army are subject to harm in the Ukraine and etc. simply due to ‘lack of documentary evidence’. The fact that the applicant has been unable to provide the Tribunal with documentary evidence does not indicate the applicant is not a refugee.

2. Given the Tribunal’s lack of expertise regarding the Salvation Army’s religious doctrines, one would have expected the Tribunal, before making specific claims upon which the decision is made, to seek expert advice from either a local branch of the Salvation Army or from any other relevant institution. In the present case the Tribunal’s decision is based on its assertion (which is totally illogical and wrong) that the Salvation Army in the Ukraine does not oppose its members undertaking military service.

3. The Tribunal ignored relevant country report information, which was consistent with the applicant’s case.

4. The Tribunal ignored its own decision of 27/02/2001 (N99/28142), where the mentioned issues were raised and resolved.’

Her Honour addressed seriatim each of these four purported grounds for review, which I have summarised, or else have conveniently extracted, below.

5 In relation to the first purported ground, Barnes FM observed that the Tribunal did not find that the appellant had been a member of the Salvation Army whilst in Ukraine. Its finding was set out in paragraph [91] of its decision, which I now reproduce:

‘The next issue is whether the Applicant was a member of the Salvation Army in Ukraine. The only work the Applicant claimed to have carried out for the Salvation Army in Ukraine is some sporadic charity work. Notwithstanding comments of the delegate [in the original decision] that the Salvation Army does not oppose military service in Ukraine, nearly two years later the Applicant has not produced any independent evidence to substantiate either his membership of the Salvation Army in Ukraine or its attitude in Ukraine to military service. Significantly, in my view, the Applicant conceded that he had not joined the Salvation Army in Australia. I am not satisfied that the Applicant has ever been a member of the Salvation Army.’

6 Barnes FM thus accepted the Tribunal’s finding that the appellant was not a member of the Salvation Army in Ukraine, notwithstanding, I should at once record, that the Minister’s delegate had earlier come to the contrary view. Her Honour identified the bases for this finding as being the limited involvement of the appellant with the Salvation Army in Ukraine, the fact that he had not joined the Salvation Army in Australia, as well as the fact that he had not produced any independent evidence to substantiate either his membership of the Salvation Army in the Ukraine or the Army’s attitude in the Ukraine to military service. There is something to be said for the view that the appellant should not have been expected to provide to the Tribunal independent evidence verifying his membership of the Salvation Army, given that there was nothing before the appellant at the pre-hearing stage to suggest that this aspect of the delegate’s findings would be overturned. In any event, whether or not the appellant was or was not a member of the Salvation Army in Ukraine is not material to the outcome of this appeal, since the Tribunal identified additional bases for reaching the conclusion that it did, and which I will discuss more fully below.

7 In relation to the appellant’s second purported ground for review, Barnes FM recorded that the appellant challenged findings of fact made by the Tribunal (in particular, that the Salvation Army in Ukraine was not opposed to its members participating in military service), and in so doing, did not commit any jurisdictional error. I repeat her Honour’s reasons for dismissing that ground of review, since they have compelling significance to the present appeal:

‘[13] ... There is nothing in the material before me to suggest that the Tribunal undertook to make any further inquiries or that this was a case in which it was necessary for it to do so. It is for the applicant to establish his case. The applicant was aware from the decision of the delegate, of independent information indicating that the Salvation Army does not shun military service but respects the right of individuals to arrive at their own decision. Indeed the applicant indicated to the Tribunal that this was his understanding of the advice he had received from a friend about the attitude of the Salvation Army in Ukraine. In these circumstances there was no obligation on the Tribunal to seek expert advice from a local branch of the Salvation Army or from any other relevant institution. This is not one of those rare cases where it can be said that it was obvious that material centrally relevant to the decision was readily available such that the failure of the Tribunal to make its own inquiries amounted to jurisdictional error (cf Prasad v MIEA (1985) 6 FCR 155). There was no obvious omission or obscurity which needed to be resolved before the decision was made. No jurisdictional error is established in this respect.’

8 The third purported ground for review was that the Tribunal had ‘ignored relevant country report information...consistent with the appellant’s case’. Barnes FM also rejected that ground, and found there to have been no evidence whatsoever to demonstrate that the Tribunal had failed to take into account relevant information in that regard. Her Honour further observed that the Tribunal had considered, at length, materials which had been relied upon in a previous Tribunal decision involving a Ukrainian person seeking a protection visa, and which touched upon the basis for review of the Tribunal’s decision which had been so advanced by the appellant.

9 The final ground identified was that the Tribunal had ‘ignored’ its own decision of 27 February 2001 (N99/28142). In that instance, the Tribunal had found that the appellant was a person to whom Australia owed protection obligations under the Convention. The appellant submitted that his case raised similar issues, and further that the Tribunal’s failure to consider, or to otherwise apply the circumstances of that case to his own, constituted jurisdictional error. Barnes FM provided several reasons for not accepting this last ground for review:

(i) first, her Honour pointed to a line of authority which has held that it is irrelevant that the Tribunal has not referred to, relied on or decided a matter consistently with, other decisions of the Tribunal, unless exceptional circumstances exist. Her Honour then pointed out that in contrast with Vassilieva v Minister for Immigration & Multicultural Affairs [2001] FCA 733, the applicant had not referred to and relied on the earlier decision in proceedings before the Tribunal in such a way as to have obliged the Tribunal to address the earlier decision. Nor were there otherwise exceptional circumstances in her Honour’s mind;

(ii) secondly, her Honour distinguished the circumstances relevantly in the Tribunal’s earlier decision in N99/28142 with those concerning the appellant in this case. The Tribunal had found in respect of the earlier applicant that he was a member of a minority religion in Ukraine, that he had a conscientious objection to military service on religious grounds and that he would continue to pursue such objections (my emphasis). On the basis of those findings, Barnes FM pointed out that the Tribunal found that the effect of the Ukrainian legislation was discriminatory against some people on religious grounds, and that the consequence for that particular applicant was more than mere prosecution by the State. Since the applicant had a well-founded fear of persecution ‘by reason of’ his religion, he was a person to whom Australia owed protection obligations under the Convention. In contrast, her Honour recorded that the Tribunal had primarily found that the appellant was not a member of a minority religion at all; hence, his claim that he was opposed to military service on religious grounds was not made out, irrespective of whether the legislation discriminated against some people on such religious grounds;

(iii) thirdly, Barnes FM said at [15], which I should record entirely:

‘...it is apparent that the Tribunal also considered his claims on the alternative basis that he was a member of or involved with the Salvation Army but found that, given that it was not satisfied on the evidence before it, including that of the appellant, that the Salvation Army was opposed to military service, it was not satisfied that the applicant had a genuine religious conviction which would entitle him to exemption for military service. It did not accept that his personal perceptions of the Army were a valid reason for him to avoid his military service obligation and was satisfied that any action taken against him would not be for any Convention reason. The fact that a differently constituted Tribunal reached a different conclusion about a different applicant does not establish error.’

10 Barnes FM duly concluded that the Tribunal had by no means misunderstood the appellant’s claims, in that it had clearly identified that he was not seeking to avoid military service per se, but rather in any event, to undertake alternative service in a hospital or elsewhere. Her Honour found that the Tribunal had ‘correctly understood and considered the applicable principles in relation to laws of general application, in particular, laws relating to compulsory military service and the need for a Convention reason for any apprehended persecution such as discriminatory operation of a law’ (citing Aksahin v Minister for Immigration & Multicultural Affairs [2000] FCA 1570). Furthermore, her Honour found that the Tribunal had made it clear to the appellant that the Tribunal had been unable to identify (on the evidence before it) anything to suggest that the army in Ukraine had engaged in flagrant violations of the human rights of its citizens, and concluded that ‘this is not a case where the Tribunal erred by failing to consider whether the applicant feared punishment for refusing to undertake military service where that service was likely to involve him in a breach of the Nuremberg principles.’ Insofar as the appellant sought merits review of that finding, the same was unavailable to him in the Federal Magistrates Court proceedings.

11 Barnes FM found accordingly that the conclusion drawn by the Tribunal, that the appellant was not a member of the Salvation Army, was open to it for adoption on rational grounds, and did not disclose jurisdictional error. Nor was any error demonstrated in its reasoning in support of the alternative finding that even if the appellant had been a member of the Salvation Army, any punishment imposed on him for failing to perform compulsory military service, and an absence of some form of requisite alternative service, would not be persecution for a Convention reason.

The appeal to the Federal Court

12 The appellant literally inundated the Court with a large amount of material in support of his purported appeal from the decision of Barnes FM. The purported notice of appeal filed 24 September 2004 contained the following purported grounds (read literally):

‘1. The appellant appeals from the whole judgment of the singe [sic] judge of the Magistrates Court of the Federal Court of Australia given on 7 September 2004 at Sydney that affirmed the respondent’s decision to refuse to grant the appellant a protection visa.

The appellant was notified of the decision on 7 September 2004.

The appellant aggrieved by the decision because it puts him in jeopardy of being forced to return to the Ukraine where he will be subjected to persecution.

2. The grounds of the application are:

1) The Magistrates Court of the Federal Court of Australia (hereinafter referred as the Court) misunderstood the whole concept of the case. The core issue argued in the Court was that the appellant had not been avoiding the military service as such but had been seeking a constitutional right under the Constitution of the Ukraine for an alternative service.

2) The Tribunal’s assertion that the Salvation Army does not oppose to military service [sic] was exceedingly erroneous. In addition, even if to suggest that the Tribunal was entitled to reach the finding it, certainly, was not entitled to make judgement on matters which require particular expertise.

3) There is another ground of appeal against the Tribunal’s decision, which was not previously put forward. Given the Tribunal’s findings outlined in ‘Findings and Reasons’ and the hearing transcript it appears that the Tribunal failed to give the appellant an opportunity to comment on relevant informant [sic], which is in breach of s 424A(1).

4) According to s 424A(1) of the Migration Act an applicant must be given certain information, eg the Tribunal must:

 give to the appellant particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

 ensure, that the applicant understands why it is relevant to the review; and

 invite the applicant to comment on it

5) Neither prior, in the course of or after the hearing the Tribunal provided the appellant with particulars regarding the policies of the Salvation Army. Nor it provided him with information related to penalties for ‘desertion from compulsory military service and other relevant information [outlined in ‘Independent information’ p 12-15 of the decision]

6) The failure to give particulars to the applicant as well as to ensure that he understood the relevance of it and to give him an opportunity to comment was in breach of s 424A(1) and constituted a jurisdictional error: WAEJ v MIMIA [2003] FCAFC 188; Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 629; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57, 97.

13 In addition, the appellant filed what purported to be written submissions by way of a document entitled ‘Appellant’s Outline of the Reasons’, which are most conveniently to be reproduced rather than subjected to attempted summary:

‘The main issue put forward by the appellant is the Tribunal’s failure to comply with s 476 of the Migration Act.

The decision was predominantly based on the Tribunal’s assertion that the Salvation Army does not oppose its members to serve in the army.

Herewith I wish to quote from the Tribunal’s accounts given during the course of the hearing.

	The Salivation Army [sic] in particular is an organisation which finds its beliefs compatible with the military service [p 8 of the transcript].

	Anybody that knows anything about the Salvation Army notice that since the end of the 19 century the Salvation Army was a grate [sic] supporter of the armed forces and have been at almost every war supporting people in uniform [p 7 of the transcript].

	The general communities may have suspicions about the Salvation Army in Ukraine but I suggest that the army itself would know that Salvation Army was on their side [p 7 of the transcript].

	It is not part of the Salvation Army principles to oppose military service [p 10 of the transcript]

	It also finds its [sic] compatible to its believe [sic] for its members to serve in the armed forces [p 10 of the transcript].

It must be noted that the Tribunal produced no evidence whatsoever to give reasons for its assertions. The only reference related to the issue was, I quote ‘my grandfather served in trenches in France in 1917-1918 along with members of the Salvation Army’ [p 10 of the transcript].

There is a clear connection between the Tribunal’s assertion, namely that the Salivation Army [sic] does not oppose its members to perform the military service, and its finding that the harm the appellant fears is not for any Convention reason.

The Tribunal, however, did not produce, mention or quote any material, evidence or anything which would justify its assertion (as an example the Tribunal might and ought to seek an advice from the Salvation Army’s corps, in the same manner as the appellant);

Contrary to the Tribunal’s assertion the Salvation Army does oppose its members to serve in the armed forces in which human rights are violated and/or which are used to suppress human rights movements (the appellant has made a number of enquiries and received replies confirming the mentioned fact. The latest enquiry was made on 1.12.2004. The reply was received on 2.12.200. According to the Salvation Army’s official "If our members believe the Government not to be the legitimate ruler of their country we would support their stand on that issue of conscience even if they were condemned to death for refusing to obey the order. This has happened when The Salvation Army was active in Russia before the 1917 revolution. There have also been similar dilemmas for British forces serving in Ireland".

In order to make out a ground in 476(1)(g), as qualified by s 476(4), the following must be established:

- the decision of the Tribunal was based on a fact;
- there was no evidence of that fact before the Tribunal;
- the fact is disproved.

See Curragh Queensland Mining v Daniel (1992) 34 FCR 212 at 224, Yilan v Minister for Immigration & Multicultural Affairs [1999] FCA 854, Pat Tat Choi v Minister for Immigration & Multicultural Affairs [1998] FCA 1556, T v Minister for Immigration & Multicultural Affairs [1999] FCA 1556.

It is fair to conclude that the Tribunal based its decision on the alleged fact that the Salvation Army does not oppose its members to serve in the Ukrainian army. Having established that the Tribunal concluded that the appellant’s fear is not ‘well-founded’ within meaning of the Convention because it was the applicant’s own decision not to serve in the Army. The Tribunal stated "I see those things to be internal matters for the army and not connected with the Convention ground of religion" [p.8 of the transcript]; "the Salivation Army [sic] in particular is an organisation which finds its beliefs compatible with the military service" [p 8 of the Transcript]; "there is no alternative for a political reasons" [p 9 of the Transcript].

I suggest to you the fact is the miliary service is quite compatible with the service of the Salvation Army [see p.9 of the Transcript].

The mere "suggestion" that the Salvation Army does not oppose the military is not of itself capable of establishing the fact. Thus there was no evidence before the Tribunal that the Salvation Army was indeed in favour of the military service in Ukraine. Accordingly the Salvation Army’s military policy, the existence of which the Tribunal based in decision, did not exist. Therefore, the Tribunal’s assertion, as opposed by the appellant and by information which would readily be available should the Tribunal requested it, is to be disproved.’

14 The appellant also provided the Court with the following additional written submissions (‘appellant’s additional written submissions’) in lieu of oral submissions at the hearing (reproduced literally):

‘I provided the Court and the Respondent with my submission as and with the Transcript of the Tribunal’s hearing held on 7 April 2003.

Having analysed the Tribunal’s arguments one would be very concerned by the way the Tribunal came up with its critical finding, namely that the Salivation Army [sic] would not oppose me to serve in the Ukrainian Army. The finding is critical because it, directly, lead to my application being refused.

To make out a ground in s 476(1)(g), as qualified by s 476(4) the following must be established:

- the decision of the Tribunal was based on a fact;
- there was no evidence of that fact before the Tribunal;
- the fact is disproved.

The Tribunal’s decision was based on a fact that the Salvation Army was not and would not oppose me to service [sic] in the Ukrainian Army. There was no evidence of the fact before the Tribunal, except for its claims that ‘my grandfather served in trenches in France in 1917-1918 along with members of the Salvation Army’ (see p 10 of the transcript].

The Tribunal provided no evidence (either written or verbal) of the Salvation Army’s policies on "conscription issue". Moreover I have reasons to believe that the Tribunal had requested for information from the Salivation Army, but received information contradicted its intention to affirm the delegate’s decision.

As far as I am concerned I had no difficulty to receive information from the salvation Army regarding the conscription issue.

I have already mentioned that I received e-mail from the Salvation Army’s official on 2.12.2004. It was stated "if our members believe the Government not to be the legitimate ruler of their country we would support their stand on that issue of conscience even if they were condemned to death for refusing to obey the order. That has happened in Russia, in Ireland etc".

On 3.12.2004 my migration agent sent another e-mail asking whether the Salvation Army would support its members to serve in the Army, in peaceful times, in which human rights are violated and which is used to suppress the Government’s political opponents. The reply was "It is extremely unlikely that a person would remain a member of The Salvation Army and take part in the type of oppressive operations you describe".

The mentioned information clearly indicate that:

(a) The Tribunal was easily able to obtain detailed and specific information regarding the Salvation Army’s views on that issue;

(b) The Tribunal was in error sitting that the Salvation Army would support me to go to serve in the Ukrainian Army.

You may say that the Tribunal was not required to use any possible avenue to obtain information. What, however, the Tribunal was required to do was to make a decision based on factual information and evidence.

The Tribunal had no evidence on the fact (e.g. the salvation Army would not oppose me to serve in the army). Therefore the fact must be disproved.

15 Finally, the appellant filed two additional documents, the first three days prior to the hearing and the second during the hearing. The first purported to be a transcript of ‘The RRT hearing held on 17 April 2003’. The second was a computer printout of an email purportedly sent by the appellant’s migration agent, Arthur Volonski, to John Dalziel of the Salvation Army. I shall refer to both of these documents in due course. I observe however that the Court does not have before it any physical evidence of the reply email dated 3 December 2004 from John Dalziel to Arthur Volonski, which is referred to in the appellant’s additional written submissions.

16 The appellant’s filed submissions (as well as his written submissions handed up during the hearing) refer to s 476 of the Migration Act 1958 (Cth). No reference to this provision is made in the appellant’s notice of appeal. Sections 476(1)(g) and 476(4) of the Act are also referred to in the appellant’s additional submissions (‘additional submissions’) handed up, on paper, during the hearing. The appellant referred to the former s 476, which ceased to apply to applications for judicial review made to the Federal Court from and after 1 October 2001. That was the date of commencement of the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) which repealed Part 8 of the Act (including the former s 476). The former s 476(1) enumerated of course the previously statutory grounds for review of a Tribunal decision and which contained the sub-sections now purportedly relied upon by the appellant, namely ss 476(1)(g) and 476(4)).

17 Section 476(1)(g) provided, as a ground for review of a Tribunal’s decision:

‘That there was no evidence or other material to justify the making of the decision.’

The operation of that subsection was qualified by s 476(4), which provided as follows:

‘The ground specified in paragraph (1)(g) is not to be taken to have been made out unless:

a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or

b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist’.

18 It is clear from the subsequent passages in the appellant’s additional submissions that it was this superseded version of s 476 upon which he purportedly relied, not the current provision, which dealt with the effect of the s 474 definition of ‘privative clause decision’ on the jurisdiction of the Federal Court of Australia and the Federal Magistrates Court of Australia.

19 Putting to one side the issue that the inclusion of this purported ground of appeal amounts, in effect, to an impermissible amendment of the appellant’s notice of appeal (for which leave was not sought), I am of course precluded from resolving issues purportedly based upon or arising out of the same by the commencement of the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth). That amending legislation significantly limited of course the jurisdiction of this Court to hear applications for judicial review from decisions of the Tribunal, if same were lodged on or after 2 October 2001. In this case the appellant lodged his application for review of the Tribunal’s decision by the Federal Magistrates Court on 28 July 2003.

Conclusions on appeal

20 Each of the materials filed in Court, which I have identified and referred to above, either by summary or by extraction in full, were purportedly filed in the name of the applicant as a litigant in person. Plainly in the light of the content of that material, the same was prepared, at least in the first place, by a migration agent. The extent and content of the material thus presented constituted an abuse of the Court’s processes. The author must surely have appreciated first, that much of the material involved non-reviewable alleged errors and secondly, that the same was presumptuously placed belatedly before the Court without purporting to obtain the leave required for that purpose. Moreover apart from the bulk of the material I have already identified, and largely extracted, there was also filed in the Registry some twenty pages of transcript of the Tribunal hearing, upon the footing that the Court was required to digest and somehow divine therefrom material in support of purported grounds of review already largely misconceived.

21 The circumstances are that this appeal was confronted by the unanswerable circumstances outlined by counsel for the Minister, that:

(i) the Tribunal’s finding that the appellant had never been a member of the Salvation Army, being a finding in relation to which no jurisdictional error was purportedly exposed;

(ii) the Salvation Army does not oppose its members performing military service, but left any such controversy to the individual discretion of its members to pursue;

(iii) the unanswerable inference emerging from the reasons of the primary judge that the Tribunal properly understood and addressed the claims made to it in the course of the Tribunal hearing;

(iv) no obligation of disclosure arose because the independent information referred to by the Tribunal fell within the exception to s 424A(3)(a) of the Act;

(v) the Tribunal acknowledged that the independent information was drawn from another decision of the Tribunal, differently constituted; the appellant specifically relied upon that decision in a written submission provided to the Tribunal on 21 April 2003; thus the appellant was aware of the independent information referred to by the Tribunal; and

(vi) none of the independent information was relied upon by the Tribunal in making its primary finding that the appellant was not a member of the Salvation Army; therefore even if there had been a failure to comply with s 424A(1) in relation to the independent information, so much did not affect the primary basis for the Tribunal’s decision.

22 The appeal was without merit and must be dismissed with costs.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate:

Dated: 1 March 2005

Counsel for the Applicant:	Appellant appeared in person
Counsel for the Respondent:	D Jordan
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	16 December 2004
Date of Judgment:	1 March 2005