FEDERAL COURT OF AUSTRALIA

Diatlov v Minister for Immigration & Multicultural Affairs [1999] FCA 1046

MIGRATION – Refugee Review Tribunal rejects claim that applicant has a well-founded fear of persecution in Estonia by reason of political opinion – whether Tribunal required to make further inquiries – significance of applicant’s loss of right to permanent residence

Migration Act 1958 (Cth), ss 36(2), 65(1), 420(2)(b), 430(1)(c), 476(1)(a), 476(1)(e)

Migration Regulations 1994 (Cth), Sch 2, reg 866.221

Federal Court Rules, O 80, rr 4, 5

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577, followed

Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402, cited

Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247, cited

Prasad v Minister for Immigration and Multicultural Affairs (1985) 6 FCR 155, cited

Luu v Renevier  (1989) 91 ALR 39, cited

RRT Reference N97/16130 (December 1997), referred to

RRT Reference N97/16131 (November 1997), referred to

ANDREI DIATLOV v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 424 OF 1999

JUDGE:                      SACKVILLE J

PLACE:                      SYDNEY

DATE:                        3 AUGUST 1999

THE COURT ORDERS THAT:

1.      The proceedings be listed for further directions at 9.30 am on 19 August 1999.

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

REASONS FOR JUDGMENT

The Scope of the Judgment

1                     The applicant seeks review of a decision of the Refugee Review Tribunal (“RRT”), made on 19 April 1999.  The RRT affirmed a decision, made by a delegate of the Minister on 24 July 1997, to refuse to grant the applicant a protection visa.  The RRT also affirmed a decision by the delegate to deny the applicant’s then wife, Ms Klar, a protection visa.  Ms Klar was originally the second applicant in the proceedings in this Court, but she has discontinued her application for review.

2                     The applicant is an ethnic Russian who has lived virtually all of his life in Estonia, which regained its independence in 1991 after fifty years of Soviet occupation.  He and his then wife were represented by a solicitor before the RRT.  He has, however, appeared unrepresented before me and has made his submissions with the assistance of a Russian interpreter.

3                     In the course of the hearing, I formed the view that, subject to one possible qualification, the applicant had not established any ground for review of the RRT’s decision.  The qualification relates to a paragraph towards the end of the RRT’s fifty-two pages of reasons.  The paragraph addresses a contention by the applicant that a law enacted in Estonia in 1997 had deprived him of his right of permanent residence in that country:

“The first applicant claims that he cannot go to Russia as he does not have ‘propiska’ or residency there and he is not able to obtain residency rights in Russia.  I accept his claim.  The first applicant also has claimed that pursuant to a 1997 amendment to the law, he has lost his residency right as he has been absent from Estonia for more than 183 days.  I have found no independent evidence which suggests that the applicant will be harmed on his return to Estonia for being absent from Estonia and I have found no evidence to suggest that he is not able to re-apply for a residency permit.  I am not satisfied that as the husband of an Estonian citizen he will not be able to apply for resident status.”

4                     I suggested to Ms McCallum, who appeared with Mr Zipser for the Minister, that if the applicant’s entitlement to residency in Estonia was an important issue, it seemed a little curious that the RRT, apparently having accepted (or at least not rejected) his claim that the 1997 law had terminated his right of residence, should simply assume without further inquiry that he could reapply for a residency permit.  Ms McCallum, in a very fair response, acknowledged, without making any concessions, that there might be some substance in the point.  However, she foreshadowed a submission that the applicant’s entitlement to residency in Estonia was peripheral to the issues confronting the RRT and that it was not necessary for it to have addressed the applicant’s claim that he was no longer entitled to resident status in Estonia.  If that submission were correct, it would follow that any error by the RRT in relation to the applicant’s entitlement to residency in Estonia was immaterial to the outcome.

5                     After some further discussion, I suggested that an appropriate course was for me to prepare a judgment on the issues that had been debated, but to arrange a referral to a legal practitioner on the Pro Bono Panel for Legal Assistance, pursuant to Federal Court Rules (“FCR”), O 80 [“Court Appointed Referral for Legal Assistance”], r 4.  I took the view that it would be “in the interests of the administration of justice” within O 80, r 4(1) (see the criteria in r 4(2)) for the applicant to receive legal representation at an adjourned hearing in relation to the RRT’s findings in the paragraph extracted above (r 5(d)).  I considered that at the adjourned hearing, the applicant’s representative (assuming one was appointed) could address the question of whether the RRT had erred in making its findings on the applicant’s entitlement to residency in Estonia and, if so, whether the error was material to its conclusion that it was not satisfied that the applicant was a person to whom Australia had protection obligations under the Convention Relating to the Status of Refugees (the “Convention”). 

6                     Ms McCallum consented to the course proposed and the applicant did not oppose it.  Accordingly, this judgment deals with the issues raised by the applicant, other than the RRT’s finding that he could reapply for a residency permit in Estonia.  The latter issue will be addressed at the adjourned hearing, which will be scheduled so as to allow an opportunity for a referral to the Pro Bono Panel.

Legislation

7                     Under s 65(1) of the Migration Act 1958 (Cth) (“Migration Act”), the Minister may grant a visa only if satisfied that the criteria prescribed by the Migration Act or the Migration Regulations have been satisfied.  A criterion for the grant of a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Convention: Migration Act, s 36(2).  That criterion for a protection visa is fulfilled where, at the time of the decision, the Minister “is satisfied that the applicant is a person to whom Australia has protection obligations under the [Convention]”: Migration Regulations 1994 (Cth), Sch 2, reg 866.221.

8                     Article 1A(2) of the Convention defines a refugee as a person who

“owing to 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 to, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

The Applicant’s Claims

9                     The applicant was born on 26 September 1969 in Ivangorod, USSR, just across the river from Narva, Estonia.  He is an ethnic Russian of the Russian Orthodox faith, but lived in Estonia virtually all his life, before coming to Australia in 1996.  He attended high school in Tallinn, Estonia, and was employed in that city until 1988.  He served in the Soviet Army from 1988 to 1990 and then worked in a variety of jobs until his departure for Australia.  He married Ms Klar in June 1996 and travelled with her to Australia.  Ms Klar is also an ethnic Russian, but obtained Estonian citizenship in January 1994.  The applicant is unable to speak Estonian at the level required to obtain Estonian citizenship.

10                  The applicant travelled to Australia on a passport of the USSR issued by the Russian Consulate in Estonia.  The RRT accepted that the applicant is stateless and approached his claim to refugee status on the basis that it should be assessed by reference to Estonia, his former place of habitual residence.

11                  The applicant’s claims were set out in written submissions to the Department, written submissions to the RRT and oral evidence to the RRT.  The hearing before the RRT took place on 11 September 1998.  The RRT’s decision was not given until 19 April 1999, although part of the delay is explained by the need to make further inquiries in connection with the applicant’s claims.

12                  The RRT recorded the claims of the applicant and Ms Klar over some twenty-six pages of its reasons.  Much of this material consisted of lengthy extracts from statutory declarations or submissions filed by or on behalf of the two applicants.  It is not entirely clear why the RRT thought it necessary to take this approach to the applicant’s claims.  Nor is it clear why the RRT did not consider it appropriate to provide a convenient summary of these claims, rather than set them out verbatim.

13                  The following are the major factual claims made by the applicant in support of his contention that he had a well-founded fear of persecution for a Convention reason:

·        The applicant suffered from taunts and abuse while growing up because of his Russian ethnicity.  These had become more pronounced after Estonia gained its independence.

·        Since the applicant could not speak Estonian sufficiently well to pass a test, he was precluded from obtaining citizenship.

·        After independence, many ethnic Russians had lost their jobs, especially non-citizens.  In 1992, the applicant lost his job as a mechanic and was replaced by an Estonian national.

·        From early 1992, the applicant was a member of “Intermovement”, an organisation formed after the independence of Estonia, which supported the rights of Russian-speaking Estonians.  The applicant was a “rank and file member” of Intermovement, and attended meetings about once a month.

·        Intermovement worked with an organisation known as the Legal Information Centre for Human Rights (“LICHR”), collecting information and handling complaints in relation to human rights abuses in Estonia.  The applicant was a non-professional volunteer worker with the LICHR from 1993, even though the LICHR was not officially registered until 2 May 1994.  The applicant worked there at least twice a week, helping the LICHR collect complaints from Russian-speaking Estonians who had problems with the Government.

·        On 15 July 1993, the applicant participated in a demonstration organised by Intermovement, protesting against the Estonian government’s discrimination against Russians.  Many activists, including the applicant, were taken to a police station, where they were questioned and abused.  Some of the uniformed personnel who detained protestors were members of a nationalist organisation known as Kajtseljit.  After the applicant’s release from the station, about seven hours later, he was forced into a car by armed members of Kajtseljit, who took him to a farm outside Tallinn.  There he was beaten and threatened with a gun, but was released the next evening.

·        About a week later, after the applicant had recovered from this incident, he made a formal complaint to the police.  The next evening, he was beaten outside his apartment by members of Kajtseljit, who said they were punishing him for complaining to the police.

·        The applicant and Ms Klar moved residence, but on 15 March 1994, armed members of Kajtseljit broke into and vandalised their flat, and severely beat Ms Klar.  According to the applicant, the intruders searched for complaints lodged with the LICHR so they could punish the complainants, but did not find any such documents.  The applicant again complained to the police, who were unhelpful, so he and Ms Klar moved residence yet again.

·        On 26 July 1994, the applicant was beaten on his way home from work, by three armed members of Kajtseljit.  The applicant’s jaw was broken, and he was concussed.

·        On 22 June 1995, two months after moving yet again, the applicant was severely beaten by four armed members of Kajtseljit, this time inside his flat.  The intruders demanded that the applicant sell the flat to someone from Kajtseljit.  About ten days later, the applicant reported the incident to a police officer, who was uninterested and unhelpful.

·        After that, the applicant and Ms Klar left their apartment and stayed with various friends until they came to Australia.  Members of Kajtseljit continued to search for the applicant at his old apartment, leaving threatening letters addressed to him.

·        During this time, the applicant continued to work voluntarily for the LICHR although, from 1996 his contribution was minimal, as a result of the abuse he had received from Kajtseljit.  The applicant had complained to the Director of the LICHR about Kajtseljit’s attacks, but she took no action.

·        In April 1996, the applicant travelled to Russia on a passport issued by the former USSR, in an attempt to re-settle there.  However, he could not do so since he did not have “propiska”, or residency, there.

·        On 10 June 1996, the applicant was granted a residence permit in Estonia, which was to last for five years.  However, he had lost his entitlement by reason of his absence from Estonia for more than 183 days.

14                  The applicant’s written submissions to the RRT specifically relied on the applicant’s fear of persecution at the hands of Kajtseljit.  It was argued that the applicant feared persecution from Kajtseljit by reason of his involvement in Intermovement, his active support of the rights of ethnic Russians in Estonia and his work at LICHR.  This was said to constitute a well-founded fear of persecution for reason of the applicant’s political opinion, actual or imputed.  The applicant also argued that he could not expect protection from the police or other authorities in Estonia, as the police sympathised with the aims and practices of Kajtseljit.

The RRT Decision

15                  The RRT accepted that the applicant, like most Russians in Estonia, had “suffered from taunts and abuse whilst growing up even before independence due to his Russian ethnicity”, and that the taunts became worse after Estonia’s independence.  While accepting that the taunts and abuse amounted to harassment, the RRT was not satisfied that the harassment was sufficiently serious to amount to persecution. 

16                  The RRT also accepted that the applicant had been unable to obtain Estonian citizenship because of his inability to speak Estonian to the required standard.  It found that a language requirement of this kind was not sufficiently serious conduct to constitute persecution.  Likewise, any language requirement for employment did not amount to persecution of the applicant, since he was not seriously restricted in his right to earn a livelihood.  He had been employed, except for a period of retrenchment, until his departure for Australia.

17                  The RRT found that Kajtseljit had re-emerged in Estonia in 1990 as a volunteer, paramilitary force.  It had connections with the Estonian Government and engaged in acts of political violence, primarily against the Russian military presence in Estonia.  The organisation had a high profile from 1992 to 1994, but the members were interested in making attacks on the Russian military rather than in targeting the Russian population.

18                  The RRT then rejected the applicant’s claim that he had been attacked by Kajtseljit for his political or imputed political opinion.  Indeed, it said that it was not satisfied that the applicant had ever been attacked by Kajtseljit.  Moreover, after considering LICHR’s annual reports and other materials, the RRT did not accept as credible the applicant’s claim that he was a volunteer worker at LICHR.  Although the RRT accepted that the applicant was a member of Intermovement and had attended demonstrations as a rank and file member, it found no evidence to suggest that Kajtseljit had targeted demonstrators or members of Intermovement.

19                  Having stated that it rejected the applicant’s claim that he had been a volunteer worker at LICHR and had been targeted by Kajtseljit for that reason, the RRT gave seven reasons for its findings:

·        The RRT was not satisfied that LICHR had been operational prior to January 1995, although it had formally been established on 2 May 1994.  Yet the applicant had claimed that he and two other volunteer workers had been attacked by Kajtseljit as early as March and July 1994.  While the RRT accepted that preparatory work had been done to set up LICHR, it was not satisfied that the applicant had played a role in that work.

·        The applicant and the two workers who were allegedly attacked by Kajtseljit were not named as volunteer workers in LICHR’s annual report, nor in information available at its Internet site.

·        At the RRT hearing, the applicant had been unable to state correctly the LICHR’s hours of operation.  It was implausible that, if he had been a worker at LICHR, he would not have known the hours.  Moreover, it was implausible that a person of the applicant’s background, with no legal training, would be a volunteer in a centre providing legal advice.  The RRT found that in fact he had assisted, in a private capacity, a legal adviser who had performed work for LICHR.

·        The RRT was not satisfied that Kajtseljit had targeted any workers of LICHR, particularly non-professional volunteer workers.  It was implausible to suggest that Kajtseljit would target a volunteer worker at home in order to seize files (as the applicant alleged).

·        The RRT also found it implausible that LICHR, having such a high international and political profile, would not take any action on discovering that one of its workers had been attacked.

·        It was strange that the applicant, who claimed he had worked for LICHR for two years, did not have a reference from the organisation, or some other form of documentary acknowledgment of his work there.

·        Finally, the RRT had requested the applicant’s permission to contact LICHR in order to confirm his claims.  Although initially declining to consent, because of what he said were fears that LICHR would deny knowledge of him for political and funding reasons, the applicant ultimately gave consent.  The director of LICHR advised by telephone that the applicant had never worked for LICHR and that none of LICHR’s workers had been physically attacked.  The verbal advice had been confirmed by e-mail.  The e-mail stated that the applicant had not worked as a volunteer, although he had worked in a private part-time capacity for a former worker at the centre.

20                  The RRT recorded that the applicant, faced with the information from the director of LICHR, had suggested that the RRT contact Mr Chiorkin, the LICHR worker by whom the applicant was said to have been privately employed.  The RRT rejected the suggestion, pointing out that there was no way of confirming that any conversation would be with the correct person.  By contrast, the RRT was satisfied that the information provided by the director of LICHR was genuine.

21                  The RRT also recorded that it accepted the applicant’s medical evidence, which showed that he had suffered injuries requiring medical attention.  It did not accept, however, that the injuries resulted from attacks by members of the Kajtseljit. 

22                  Accordingly, the RRT was not satisfied that the applicant was a person to whom Australia owed protection obligations under the Convention.  It therefore affirmed the decision not to grant him a protection visa.

The Applicant’s Submissions

23                  The application for review of the RRT’s decision was filed on the applicant’s behalf by his then solicitors.  The application identified as the first ground for review that the RRT’s decision involved an error of law (Migration Act, s 476(1)(e)).  The particulars were as follows:

“a)      The Tribunal failed to make a finding in relation to medical reports reporting injuries caused to the applicant.

  b)       The Tribunal failed to make a finding regarding the arrest of the applicant … at a demonstration.

  c)       The Tribunal failed to make a finding about whether the applicant … could lawfully return to Estonia.”

24                  The second ground in the application was that the RRT had failed to observe procedures it was required to observe (Migration Act, s 476(1)(a)) because it had failed to act in accordance with substantial justice or the merits of the case (Migration Act, s 420(2)(b)).  No particulars were provided in support of the second ground.

25                  In his oral submissions, the applicant did not mention the grounds identified in the application, except the complaint, to which I have already referred, that the RRT failed to make a finding as to whether the applicant could lawfully return to Estonia.  In these submissions, the applicant raised other arguments, including the following:

·        the RRT had paid insufficient attention to the “peculiarities of the national and political situation in Estonia”;

·        the RRT should not have accepted the evidence provided by the director of LICHR;

·        the RRT should have sought out Mr Chiorkin to inquire whether he supported the applicant’s case;

·        in two published decisions, the RRT had found in favour of ethnic Russians in Estonia; and

·        the applicant’s consent to the RRT making inquiries in Estonia had been “forced”.

Reasoning

26                  I shall briefly deal first with the claim made in the application for review that the RRT contravened the requirement in s 420(2)(b) of the Migration Act, to act according to substantial justice and the merits of the case, and that therefore a ground of review was available to the applicant under s 476(1)(a) of the Migration Act.  Neither the application nor the applicant’s submissions identified the manner in which it was said that the RRT had contravened s 420(2)(b).  In any event, the High Court has held that s 420(2)(b) does not establish procedures of the kind identified in s 476(1)(a) of the Migration Act: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577, at 588-589, per Gleeson CJ and McHugh J; at 600, per Gummow J; at 613, per Hayne J; at 620, per Callinan J.

27                  Secondly, there is no substance to the applicant’s claim that the RRT failed to make a finding in relation to medical reports reporting injuries to the applicant.  The RRT specifically found that the reports were genuine.  However, it rejected the applicant’s claim that his injuries had been inflicted by members of Kajtseljit.

28                  Thirdly, there was no occasion for the RRT to make a finding that the applicant had been arrested at a demonstration.  Whether he had been arrested or not at a demonstration was not material to his claim that he feared persecution at the hands of Kajtseljit.  The RRT accepted the applicant’s claim that he had attended demonstrations as a rank and file member of Intermovement.  However, it rejected his claims that Kajtseljit targeted demonstrators or members of Intermovement.  Section 430(1)(c) of the Migration Act requires that the RRT set out its findings on any material questions of fact, that is, its findings on substantial factual issues crucial to a proper determination of the matter: Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402, at 414, per Sackville J; Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247 (FC), at [22].

29                  Fourthly, the applicant’s criticisms of the RRT’s factual findings give rise to no reviewable error.  As Gleeson CJ and McHugh J said in Eshetu, at 589, it is not enough to show a number of reasons for disagreeing with the RRT’s views of the merits of the case.

30                  Fifthly, the RRT was under no obligation to seek out Mr Chiorkin in Estonia.  If the applicant, who was legally represented before the RRT, considered that Mr Chiorkin could provide evidence to assist his case, there was no impediment to him obtaining that evidence and presenting it to the RRT.  There are limited circumstances in which a decision-maker may be obliged to make further inquires: Prasad v Minister for Immigration and Multicultural Affairs (1985) 6 FCR 155, at 169; Luu v Renevier (1989) 91 ALR 39, at 49-50 (although a question arises as to whether, in view of Eshetu, this Court has power to grant relief in respect of the breach of any such obligation).  The principles discussed in Prasad and Luu might be relevant to the RRT’s finding that the applicant would be able to reapply for a residency permit in Estonia.  They could not, however, require the RRT to make inquiries of a person in Estonia whose evidence might or might not have a bearing on the outcome of the proceedings.

31                  Sixthly, the two decisions of the RRT referred to by the applicant involve very different facts to this case: RRT Reference N97/16130 (December 1997); RRT Reference N97/16131 (November 1997).  They turn on their own circumstances and have no bearing on the present application for review.

32                  Seventhly, there is no evidence to support the applicant’s assertion that he was “forced” to consent to the RRT making inquiries of the Director of LICHR.  On the contrary, such material as is before the Court suggests that the applicant had a clear choice available to him, which he exercised.  The consent to the course proposed by the RRT was communicated by his solicitors in a letter dated 15 January 1999.  It is true that the applicant had earlier expressed reservations about the RRT contacting the Director, but that does not suggest, much less establish, that his consent was obtained “by force”.

Conclusion

33                  The applicant has not thus far established any ground for review of the RRT decision.  As I explained, the matter will be stood over to enable the issue identified earlier in this judgment to be argued more fully.

Associate:

Dated:              3 August 1999