Vassilieva v Minister for Immigration & Multicultural Affairs [2001] FCA 733

FEDERAL COURT OF AUSTRALIA

Vassilieva v Minister for Immigration & Multicultural Affairs [2001] FCA 733 migration law – application for review of decision of Refugee Review Tribunal – applicant is a Jehovah's Witness and citizen of the Russian Federation - applicant alleges Tribunal's findings inconsistent with findings in earlier decisions – whether Tribunal bound to follow earlier decisions – whether Tribunal bound to address alleged inconsistency in its reasons for decision. Migration Act 1958 (Cth) ss 430 & 476 Soboleva v Minister for Immigration and Multicultural Affairs [2001] FCA 528 Yusuf v Minister for Immigration and Multicultural Affairs [2001] HCA 30 EKATERINA VASSILIEVA, ALEXANDRE VASSILIEV & ANNA VASSILIEVA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 1361 of 2000 MOORE J 15 JUNE 2001 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1361 OF 2000

BETWEEN: EKATERINA VASSILIEVA, ALEXANDRE VASSILIEV & ANNA VASSILIEVA

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: MOORE J

DATE OF ORDER: 15 JUNE 2001

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application is dismissed. 2. Costs reserved 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 N 1361 OF 2000

BETWEEN: EKATERINA VASSILIEVA, ALEXANDRE VASSILIEV & ANNA VASSILIEVA

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: MOORE J

DATE: 15 JUNE 2001

PLACE: SYDNEY

REASONS FOR JUDGMENT

Introduction 1 This is an application by Ekaterina Vassilieva ("the applicant") for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") of 20 November 2000, in which the Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister"), refusing to grant the applicant a protection visa. The criterion for the grant of such a visa is that the applicant is a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees of 28 July 1951 as amended by the Protocol Relating to the Status of Refugees of 31 January 1967 ("the Convention").

Background 2 The applicant is a citizen of the Russian Federation, who arrived in Australia with her husband and child on 30 October 1998. On 7 December 1998 they lodged an application with the Department of Immigration and Multicultural Affairs for protection visas under the Migration Act 1958 (Cth) ("the Act"). On 22 March 1999 a delegate of the Minister refused the grant of protection visas and on 20 April 1999 the applicant applied to the Tribunal for review of that decision. 3 The applicant was the member of the family claiming to be a person to whom Australia has protection obligations, on the ground that she fears persecution if forced to return to Russia, for reasons of her religion. She is a Jehovah's Witness.

The Tribunal's reasons 4 The reasons for decision of the Tribunal commenced with a discussion of the relevant legislation and what is comprehended by the definition of "refugee" and by the notion of "persecution". Reference was made to the judgments of the High Court in Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379, Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225, Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 and Chen v Minister for Immigration and Multicultural Affairs (2000) 170 ALR 553. In a section in the decision headed "Claims and Evidence", the Tribunal summarised the claims made by the applicant in her application for a protection visa, in written submissions in support of the application as well as in written submissions in support of the application for review, her record of interview with an officer of the Department and her oral evidence given to the Tribunal on 25 July 2000. 5 The summary of her account is as follows. The applicant is a social worker from St Petersburg, who began practicing as a Jehovah's Witness in about October 1997. The applicant claims to have been targeted on several occasions by anti-Jehovah's Witness protestors. Missiles such as eggs and water were thrown at her. There was a more serious incident in May 1998 in which she was physically assaulted. On that occasion she was departing from a Jehovah's Witness meeting which had been conducted at an adult technical college. She was approached and hit and kicked in the face by an unknown person, who ran off when she screamed. She was not seriously harmed and did not need to seek medical assistance. On reporting the incident to the police the following day, she was told that "she was a member of a sect and if he had his way he would put them all in jail." 6 In June 1998, an anonymous note was left on the door of the apartment in which she and her family lived. The note read: "Death to the servants of Satan". Receipt of this note caused the applicant to fear for the safety of herself and her family, and they relocated to a flat on the other side of St Petersburg which was owned by her husband and his mother. In August 1998, after she and her husband entered a lift in the apartment building a burning, smoking object was tossed in with them. The applicant felt nauseous after this incident but was otherwise unharmed, and did not report the incident to authorities as she and her husband were too frightened to do so. 7 Following this incident the applicant and her husband, who is half-Finnish, decided to investigate the possibility of living in Finland. She obtained a passport and on 21 August 1998 they arrived in Finland with a letter detailing the persecution they suffered in Russia. They presented the letter to the first policeman they saw at the bus station they alighted at, but as neither spoke each other's language there were difficulties communicating. The policeman made signs which the applicant and her husband took to mean that they would be jailed if they stayed, so they returned to Russia that day. 8 The Tribunal did not refer to a claim of the applicant's raised with the Minister's delegate that in April 1998 she was dismissed from her job as a social worker because she was a Jehovah's Witness. 9 After setting out at length independent country information dealing with the 1997 Law and the history of the Jehovah's Witnesses in Russia, the Tribunal, in a section in its decision titled "Findings and Reasons", made the following findings in relation to the applicant's claims. 10 The Tribunal was sceptical about some of the claims made by the applicant. The Tribunal also said: "The Applicant made a number of assertions which her own material and/or the independent country information set out above, indicates is incorrect. For example, she wrote that the new (1997) religion law stripped Jehovah's Witnesses of their rights and that they are subjected to violence, that there has been a dramatic drop in the number of Jehovah's Witnesses, and she told the Tribunal that she is not allowed to teach her religion to her child, distribute literature etc. It was also claimed albeit in passing, that legal action could be initiated against the Applicant, but no reason was given and in any case, the Jehovah's Witnesses is a legally recognised religion; that the authorities don't enforce the law, a very general assertion without any detail … ." The Tribunal did, however, accept that the applicant was a practicing Jehovah's Witness and that she was assaulted in May 1998 after leaving a Jehovah's Witness meeting. However it did not consider that the attack was anything other than a random one. It also accepted that the incidents involving the eggs and water and the note had occurred, but was not satisfied that they were "so serious as to amount to persecution within the meaning of the Convention." It stated: "The Applicant was not harmed and she did not report any of these incidents to the authorities or seek assistance from any source." 11 Considering next the incident which took place in the lift at the apartment building, the Tribunal found that: "She doesn't know who was responsible or why, and the lack of even basic security in the building, the Tribunal cannot be satisfied on the evidence before it, that the lift incident was directed at the Applicant for reason of her religion." 12 The Tribunal later considered the extent to which protection would be available to the applicant from the authorities. In relation to the incident in which she reported the assault to the police, it did not accept that "this is indicative of a lack of protection", stating that: "In the circumstances of the assault, as described by the Applicant, it is difficult to see what the Police or anyone else could realistically do to catch her assailant or to protect her in the future. Furthermore, the Applicant did not take the matter further, either to complain about the officer, by the end of 1998, more than 34,000 citizen complaints had been lodged against police officers ….. or to pursue the matter elsewhere." The Tribunal was satisfied that "adequate mechanisms of State protection are available to the applicant", and, while accepting that on occasions hostility is directed towards Jehovah's Witnesses, cited the lack of independent country information detailing persecution towards Jehovah's Witnesses as confirmation that it did not exist. It also accepted that: "(A)s a result of successful court actions in 1999 the Jehovah's Witnesses, with the word 'Russia' in their official name, are now recognised as a well established religious group with a long history in Russia, rather than as a totalitarian sect or 'new religious group'." The Tribunal concluded that on all the evidence it was not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention. 13 In written submissions in these proceedings the applicant raised an issue concerning the adequacy of the Tribunal's reasons and the failure of the Tribunal to comply with s 430. A very similar submission was made in a matter I gave judgment in on 8 May 2001: Soboleva v Minister for Immigration and Multicultural Affairs [2001] FCA 528. The essence of the complaint is that the Tribunal did not explain why it reached a conclusion concerning Jehovah's Witnesses in Russia contrary to or inconsistent with earlier decisions made in relation to other applicants for protection visas. In the present matter, none of the earlier decisions were raised with the Tribunal. For reasons given at pars [21]-[26] in Soboleva this submission would not have established reviewable error on the law as it stood before the recent judgment of the High Court in Yusuf v Minister for Immigration and Multicultural Affairs [2001] HCA 30. As a result of that judgment, it is a submission that must fail. 14 The only possible point of substance raised by the applicant in the present matter is that the Tribunal did not refer to or deal with the applicant's claim that she had been dismissed in April 1998 from her employment because she was a Jehovah's Witness. it is not apparent whether the Tribunal accepted this occurred and, if so, its significance. However it was a matter raised only obliquely by the applicant in the written submissions to the Tribunal. I do not know if it was referred to by the applicant when she gave her account orally to the Tribunal. The failure of the Tribunal to refer to it is explicable by the way the matter was referred to in the written submissions. That it was not referred to does not imply legal error on the Tribunal's part of the type discussed by the majority (McHugh, Gummow and Hayne JJ, with Gleeson CJ agreeing) in Yusuf at pars [75] to [85]. 15 I dismiss the application with costs. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate: Dated: 15 June 2001 Ekaterina Vassilieva appeared in person on behalf of all the applicants

Counsel for the Respondent: Michael Wigney

Solicitor for the Respondent: Clayton Utz

Date of Hearing: 5 June 2001

Date of Judgment: 15 June 2001