FEDERAL COURT OF AUSTRALIA

Shumilov v Minister for Immigration & Multicultural Affairs [2001] FCA 516

MIGRATION – review of a decision of the Migration Review Tribunal affirming a decision not to grant a protection visa – no material error of law shown in Tribunal’s reasons

Migration Act 1958 (Cth) ss 430(1), 476(1)(e)

Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 referred to

SEMYON SHUMILOV AND GALYA SHUMILOV v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

NO. N 1374 OF 2000

JUDGE:          BEAUMONT J

DATE:            27 APRIL 2001

PLACE:          SYDNEY

THE COURT ORDERS THAT:

1.                  The application is dismissed, with costs.

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

REASONS FOR JUDGMENT

BEAUMONT J:

INTRODUCTION

1                     This is an application under the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) affirming a decision made by a delegate of the Minister to refuse an application made by the applicants for protection visas.

2                     The applicants are citizens of Uzbekistan.  The second applicant is the mother of the first applicant.  Both applicants arrived in Australia on 14 November 1998 and lodged applications for protection visas on 9 December 1998.  They claim to fear persecution in Uzbekistan for reason of their Russian ethnicity and their religion, Christianity.

3                     The applicants’ grounds of their application for review are as follows. 

4                     First, they claim that the Tribunal made no express finding, rejecting the applicants’ evidence of violent attacks by the Uzbek police, and failed to make a finding as to the motivation of these attackers.  This alleged failure to make a finding on motivation is said to give rise to a ground for review under s 476(1)(a) of the Act and by virtue of the provisions of s 430(1)(c)1C of the Act.

5                     Secondly, the applicants say that the Tribunal accepted that there was a real chance that the applicants would be subjected to corrupt practices by the Uzbek police and it failed to make findings on material questions of fact in relation to the issue of effective state protection.  This failure, the applicants argued, discloses an error of law under s 430(1)(c)1C of the Act.

THE TRIBUNAL'S REASONS

76                  The Tribunal’s reasons are lengthy and in order to be properly understood need to be read as a whole.  Given the length of the Tribunal’s reasons, it is not feasible to attempt a summary.  However, in essence, the Tribunal based its conclusion on its view that the applicants’ claims were quite exaggerated and implausible.  Essentially the Tribunal’s final process of reasoning proceeded along the following lines.

87                  The picture of the situation for Russians and Christians in Uzbekistan painted by the applicants and witnesses appearing for the applicants was so dramatically at variance with the “independent” evidence available to the Tribunal that both could not be correct.  To the extent of any inconsistency, the Tribunal stated that it preferred the independent evidence on the basis that it was more likely to be accurate than the claims made by the applicants and their witnesses.

98                  There were significant problems with the evidence given by the applicants and their witnesses.  The evidence given by the first applicant’s friends in the United States included a number of claims with regard to what had happened to the applicants, which were claims werenot reflected in the applicants’ their own original applications.

109               The first applicant’s evidence with regard to the fact that he was being followed was contradictory.  The second applicant’s explanation for her unwillingness to report the attack on her in August 1996, being that she had gone to the police in 1995 after her husband’s death and that this had not achieved anything, did not accord with her evidence that both before and after the attack on her she was prepared to approach the police and the Department of Internal Affairs in relation to other matters.

1110            The second applicant claimed that she had no relatives in Uzbekistan, but upon being informed by the Tribunal that the first applicant’s original application indicated that his elder brother was still living in Uzbekistan, she conceded that she did, in fact, have a relative in Uzbekistan, notwithstanding that he was on the verge of leaving.  In light of such inconsistencies and contradictions in their evidence the Tribunal did not accept that the applicants were witnesses of truth.

1211            On the basis of the independent evidence, the Tribunal did not accept that if the applicants returned to Uzbekistan now or in the foreseeable future either the first applicant or his mother had a well-founded fear of being prevented or restricted in the practice of their religion, Russian Orthodox, to an extent or in such manner as to amount to “persecution” for the purposes of the Convention.  To the extent that the applicants might encounter hostility from Muslim Uzbeks when attending church, the Tribunal found that they could expect to receive the protection of the government of Uzbekistan.

1312            Contrary to the evidence given by the applicants and their witnesses, the independent evidence suggested that far from wishing to force non-Uzbeks out of the country, the government of Uzbekistan tried to prevent the mass exodus of Russians which took place between 1992 and 1994 because of the damage to the Uzbek economy.  The Minority Rights Group reported in April 1997 that the government of Uzbekistan had sought to reassure the Russian community by upholding the principle of equal rights and freedom for all citizens regardless of ethnic origin, and although around 500,000 ethnic Russians are estimated to have emigrated to Russia since Uzbekistan became independent, the information before the Tribunal suggested that this was not due to human rights abuses but rather to perceptions of limited future economic and social prospects for non-Uzbeks in Uzbekistan.

1413            There was nothing in the evidence before the Tribunal which suggested that if the first applicant returned to Uzbekistan now or in the reasonably foreseeable future he would be unable to obtain employment by reason of his race, or that he would be limited to jobs that are so dangerous or demeaning or so out of keeping with his qualifications as to constitute “persecution” for the purposes of the Convention.

1514            The question of future employment did not apply to the second applicant who confirmed to the Tribunal that she was retired from employment and in receipt of a pension.

1615            The independent evidence indicated that the militia in Uzbekistan are highly corrupt but that this corruption is manifest in the militia’s dealings with ethnic Russians and ethnic Uzbeks alike.  Any difference would be marginal.  On the basis of this independent evidence, the Tribunal did not accept that Russians had been leaving Uzbekistan in large numbers because the authorities discriminated against non-Uzbeks or Russians in particular.

1716            The Tribunal accepted that some officers of the militia and the Uzbek ..... police were corrupt and that there would be a real chance that the first applicant wouldwill face demands for money from such corrupt officers if he returned to Uzbekistan now or in the reasonably foreseeable future.  However, the Tribunal did not accept that the first applicant was being singled out by corrupt officers because he was Russian, or that there was a real chance that he would be singled out for this reason in the future.  Rather, on the basis of independent advice from the Australian Department of Foreign Affairs and Trade (“DFAT”) the Tribunal found that there would only be marginal differences in the treatment of ethnic Russians when compared to the treatment of ethnic Uzbeks.

1817            Evidence given by the applicants that the second applicant had been beaten and raped in August 1996 and that this crime had gone unpunished could not be said to reflect the lack of state protection for Russians in Uzbekistan given that the second applicant did not report it to the police.

1918              Similarly, although the first applicant referred to Uzbeks extorting money from him and other Russian speakers in his workplace, there was no evidence given to suggest that the first applicant had sought the protection of the authorities in relation to this extortion.  The Tribunal accepted that, following independence, Russian citizens in Uzbekistan did experience some antagonism in public places.  However, it also accepted independent evidence which indicated that the outlook for the Russian community in Uzbekistan might not be as bleak as might first have appeared.

2019            In any event, the Tribunal did not find that occasional racist insults, referred to in the evidence of the applicants and in the independent evidence, would amount to persecution for the purposes of the Convention.  Nor could the Tribunal find that the applicants had a well founded fear of being attacked by Uzbek nationalists, Muslim Moslem fundamentalists or Uzbek people in general if they returned to Uzbekistan now or in the reasonably foreseeable future.

2120            Independent evidence before the Tribunal indicated that the government of Uzbekistan hashas cracked down on Uzbek nationalists and hashas arrested hundreds, perhaps thousands, of MuslimsMoslems and members of Islamic political groups.  Moreover, the Australian DFAT hadhas advised that there have been no reports of ethnic violence causing an exodus of Russians from Uzbekistan.

2221            The Tribunal notednoticed evidence given about a report on SBS Television in 1998 relating to an eighty-five year old woman who had been raped in Uzbekistan;  evidence that the nineteen year old Russian sister-in-law of one of the first applicant’s brother-in-law’s friends had been raped and killed and that the killer had been released after two months;  evidence that the applicant’s sister had been humiliated by an Uzbek doctor when he had tried to touch sensitive parts of her body;  and the case of a five year old Russian girl who had been raped by an Uzbek doctor. 

2322            The Tribunal also noted evidence given by the first applicant and the applicant’s sister that the first applicant was of an age where he could be conscripted and that if he were to be in the army, he would have to serve alongside MuslimsMoslems and would face certain death. 

2423            However, the Tribunal did not accept that such cases demonstrated that the government of Uzbekistan wasis unable or unwilling to provide protection for all its citizens without discrimination and rather the Tribunal found that if the applicants returned to Uzbekistan now or in the reasonably foreseeable future, the government of Uzbekistan wouldwill provide them with the same level of protection as any other citizen of Uzbekistan and with the level of protection sufficient to remove a real chance of them being persecuted by Uzbeks or MuslimsMoslems by reason of their race or religion.

CONCLUSIONS ON THE APPLICATION

2524            As mentioned, the applicants rely on several grounds in support of their application for a judicial review and it will be convenient to deal with them in their turn. 

25                  As has been seen, the first ground of review relied upon is the claim that the Tribunal failed to make findings on the motivation for the attacks made upon the applicants.  In support of this ground, the applicants submitted that the Tribunal made no express finding rejecting the applicants’ evidence of violent attacks by the Uzbek police and on a beneficial construction of the decision, appears to have accepted that the attacks occurred.

26                  It is said that, on any view, the Tribunal made no finding which explicitly rejected the applicants’ evidence that their attackers used racial epithets in the course of the attacks such as “Russian slut”, “Russian pig” and “Russian bastard”.  In this context, the applicants say, the Tribunal erred in failing to make a finding on the motivation of the attackers.  Several findings may have been open.  They say one finding would have been that, consistent with the use of racial epithets, the attackers were motivated by the applicants’ Russian ethnicity.  Another alternative finding would have been that the attackers were motivated entirely by greed and by the applicants’ resistance to their extortion demands.  A further alternative finding, the applicants say, would have been that the attackers were motivated in part by a desire to obtain funds by extortion and in part by hatred for the applicants because they are Russian.

27                  It is submitted, on behalf of the applicants, that a proper consideration of these alternatives was a fundamental element in the application of the provisions of the Convention; that is to say, if the Tribunal had found that the attacks fell within the second alternative, the Convention would not apply.  If on the other hand, the Tribunal had concluded that the motivation was either the first or the third alternative, the attacks were indeed Convention-related forms of persecution.

28                  It is argued for the applicants that a determination with respect to the motivation of the attacks was crucial because they provided examples of persecution in the past so that the inference would be available to found an inference as to the likely motivation behind any future persecution.  It is said therefore for the applicants that the Tribunal has failed to make a finding on a question of fact which was essential to the correct application of the Convention.  Reliance is placed in this connection upon the decision of the Full Court in Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 at pars 55 and 56.  In this way, it is said that s 430(1)(c) has been breached and accordingly this constitutes a ground of review within the meaning of s 476(1)(a).  As an alternative ground for this argument it is contended for the applicants that, even if it be assumed (contrary to their submission), that the Tribunal must have found that the attacks were not in any way motivated by the applicants race, the Tribunal’s reasons are basically deficient because they failed to explain how such a conclusion could be reached, given the apparent acceptance of the evidence of the attacks involved, being insults based on race.

3129            I have difficulty accepting this submission.  As I have said, the Tribunal’s reasons are lengthy. and it It is simply not feasible to do justice to them in a summary modemade for present purposes.  As a matter of necessity therefore, as I have indicated, I have done no more than attempt to isolate the essential ultimate process of reasoning adopted by the Tribunal in coming to its ultimate conclusion.  However, as I havesaid earlier before, the Tribunal’s reasons must be read as a whole in order to understand properly the process undertaken by the Tribunal.  In my opinion, when those reasons are read as a whole, what emerges is that the Tribunal has given careful and thorough consideration to, not only the individual claims made on behalf of the applicants, but has also considered each of those claims in the broader context of the general claim of persecution advanced on behalf of each of the applicants.  Viewed in that light, it appears that the Tribunal was simply not prepared to accept that any material aspect of the case sought to be made by the applicants could be relied upon.

3230            As I have already said, the Tribunal found that the claims made by the applicants were quite exaggerated and incredible....…   Given that conclusion, reached by the Tribunal on the whole of the material before it, I do not think it is now open to the applicants now to seek to isolate one or other aspect of their claim, and to seek to use that, as it were, as a platform upon which to erect an edifice of the kind now propounded.

31                 The Court Book in this matter consists of 218 pages of material., aAll of that material was, of course, before the Tribunal.  The Tribunal, of course, had the advantage of seeing and hearing from the applicants.  It is quite impossible for the Tribunal to deal with each and every aspect of a number of individual claims advanced in a case such as the present.  Indeed, any such fragmented approach could well lead to an artificial and unjust result.

32                  In the Singh case, in the passage relied upon by the applicants (at pars 55,56), the majority of the Full Court (Black CJ, Sundberg, Katz and Hely JJ), observed that the reasoning process a Tribunal adopts may require a decision on a question of fact in order to complete the logical chain the Tribunal has adopted as the basis for its decision, so that failure by a Tribunal to set out its findings in relation to that fact would involve a contravention of s 430(1)(c).  That is so because, as their Honours point out, the process of reasoning adopted by the Tribunal has made that fact a material fact and, in that sense, the decision is dependent upon it.  Conversely, as their Honours went on to observe, an applicant may propose facts as material, but if the ultimate conclusion reached by the Tribunal is not dependent upon, and does not require a finding on those facts, then they will not be material questions of fact, because the decision does not turn upon them.  Accordingly, their Honours stated (at par 56):

“But a requirement to set out findings on material questions of fact, and refer to the material on which the findings are based, is not to be translated into a requirement that all pieces of conflicting evidence relating to a material fact be dealt with.”

3533                  Those observations are, of course, helpful, in that they necessarily illustrate how difficult it is to generalise in this area. and that, but ultimately, the Court, in any application for judicial review sought to be based upon this ground, must focus upon the particular approach taken by the Tribunal and considered that approach in the context of the claims that are made. 

34                  So viewed, in my opinion, the Tribunal did not commit any breach of the requirements of s 430(1)(c).  Rather, in my view, the Tribunal made a full and thorough assessment of the claims made and in a proportionate manner dealt with those claims by making the findings that appeared to the Tribunal to be appropriate in order to consider whether the Convention applied.  I therefore reject the first ground of the application for review.

3635            The second basis relied upon as providing warrant for intervention by way of judicial review, as has been noted, is that the Tribunal made an error of law in relation to the motivation for the persecution.  In this regard, the applicants point to the Tribunal’s reliance upon information provided by DFAT::

“Ethnic Russians may be subject to closer and more regular attention from the militia though the difference in treatment would be marginal.”

3736            It is said, on behalf of the applicants, that this information clearly raised a real prospect that corrupt Uzbek police would, at least in part, select their victims by for reason of their Russian ethnicity.  It is said on behalf of the applicants that, notwithstanding this information, the Tribunal appears to have assumed that the cConvention did not apply, merely because the more severe treatment of Russians was “marginal”.  This submission is made by a reference to a passage in the following reasons of the Tribunal:

“I prefer the advice of the Australian Department of Foreign Affairs and Trade that there would only be marginal differences in the treatment of ethnic Russians when compared with the treatment of ethnic Uzbeks.”

3837                  It is said that this reasoning, and the failure torevert resort to what is was described, in argument, as a “principle” explained by the Full Court in Rajaratnam v Minister for Immigration and Multicultural Affairs ([2000] FCA 1111 at par 46), demonstrates an error of law within the meaning of s 476(1)(e).

38                  In Rajaratnam, Finn and Dowsett JJ made some general observations, which I will not attempt to summarise here, but which addressed the question whether an extorted party may have been chosen, or not chosen, specifically as a target of extortion for a Convention reason. 

39                  Again, as in the case of the Full Court decision in Singh, the observations are, with respect, helpful, but are necessarily expressed in general terms.  Again, in any individual case, it is essential to concentrate in the first instance on the particular context.Here also, I am of the view that, in order to understand the Tribunal’s approach, its reasons must be read as a whole.  When those reasons, in all their detail, are considered as a whole, I can discern no error of law in the respect suggested.  The question rather is, in my view, truly one of fact.  In the ultimate analysis, the Tribunal has accepted that ethnic Russians may be subjected to closer and more regular attention from the militia, but has concluded that the difference in treatment would be “marginal”.  That being so, I am not persuaded that any error of law in this connection has been demonstrated.

40                  The final basis for challenge change to the Tribunal’s decision, relates to the findings made in relation to the question concerning effective protection by the home State.  It is settled lawmore in this area, that the question here is whether it can be said that there is a reasonable willingness on the part of the law enforcement agenciesy, and the courts, to detect, prosecute and punish offenders.

41                  Again, the Tribunal addressed this matter in considerable detail.  In the submissions advanced on behalf of the applicants, reliance is placed upon the Tribunal’s conclusion that there was a real chance that the applicants would be subject to corrupt practices by the Uzbek police.  However, as the applicant’s submissions recognised, the Tribunal went on to conclude that,. nonetheless, the applicants could obtain effective protection from the ggovernment.  The expression of the Tribunal’s reasons was:

“The Government of Uzbekistan will provide them with the same level of protection as any other citizen of Uzbekistan, and with the level of protection sufficient to remove a real chance of their being persecuted by Uzbeks or Muslims, by reason of their race, (Russian) or their religion, (Russian Orthodox).”

42                  It is said that there are internal and other inconsistencies in this conclusion.  I cannot agree.  Clearly the issue was a factual one, albeit one of considerable complexity, but ultimately the Tribunal was called upon to make a judgment, or assessment, on what was likely to happen if the applicants returned to Uzbekistan now or in the reasonably foreseeable future.  In principle, these were matters of fact , (albeit secondary fact),, but I can discern no error of law in this connectionconvention, and certainly no material error of law (in the sense that a finding needed to be made of the kind mandated in the circumstances described by the Full Court in Singh's case above).

43                  For those reasons, the application must be dismissed., and I so order

Associate:

Dated:              22 May 2001