FEDERAL COURT OF AUSTRALIA

Efimov v Minister for Immigration & Multicultural Affairs

[2001] FCA 1820

MIGRATION – protection visa – no issue of principle

Migration Act 1958(Cth) s 476(1)(a), s 476(1)(c), s 476(1)(e), s 476(1)(g)

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 referred to

Minister for Immigration and Multicultural Affairs v Ibrahim (2000) 74 ALJR 1556 referred to

Minister for Immigration and Multicultural Affairs v Prathapan (1998) 86 FCR 95 referred to

Ahmed v Minister for Immigration and Multicultural Affairs [2000] FCA 123 referred to

OLEG EFIMOV v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1175 of 2001

STONE J

19 DECEMBER 2001

SYDNEY

THE COURT ORDERS THAT:

1.                  the application be dismissed;

2.                  the applicant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

1                     The applicant was born in Vladivostok and is a citizen of the Russian Federation who arrived in Australia on 17 February 1999.  On 12 March 1999 the applicant applied for a protection (Class XA) visa under the Migration Act 1958 (Cth) (“the Act”).  His application was refused by a delegate (“Delegate”) of the respondent (“Minister”) and the Refugee Review Tribunal (“Tribunal”) handed down a decision affirming the Delegate’s decision on 31 July 2001.  On 9 August 2001, the applicant commenced proceedings in this Court seeking review of the Tribunal’s decision.

BACKGROUND

2                     The applicant had previously travelled to Australia on three occasions (between August 1996 and November 1998) on student visas using a valid passport in his own name. On 12 March 1999, before the last visa expired (15 March 1999), the applicant lodged his protection visa application.  His current passport (which was produced at the hearing) was renewed in Russia on 4 January 1999 and is valid to 4 January 2004.

the applicant’s claims

3                     The applicant had claimed that he had a well-founded fear of persecution in Russia because he is Jewish. He said that in Russia being Jewish is an issue of religion and of nationality. He claimed that because his name is not a Jewish name (it was changed in childhood) he was not identified as a Jew until, in 1997, he made enquiries about migration to Israel.  After that he was subjected to a number of anti-Semitic incidents:

·        In June 1998 he received a threatening and anti-Semitic telephone call; anti-Semitic leaflets were placed in his letter box; his car was splashed with acid and its tyres slashed; and he was named on a list of “enemies of Russia” distributed throughout his apartment block.

·        In July 1998 a garage leased by his employer was set on fire allegedly as a warning to employ only Russians. As a consequence the applicant was dismissed from his employment.

·        During the course of an investigation into the fire the applicant was suspected of involvement in the fire because, as the investigator is alleged to have said, the Jews had “got out of hand”;

·        The applicant commenced proceedings in Russia against the law enforcement agency claiming “moral and financial damages” and re-instatement in his employment.  The matter came on for hearing in January 1999.  The applicant’s claim was dismissed and he was ordered to pay $US 500 costs.

·        After another threatening phone call to his mother’s home where he re-registered his residence after returning from Australia, the applicant moved to his grandmother’s home. The applicant claimed that this house had been burned down in January 1998 and had only just been rebuilt.

tribunal’s decision

4                     The Tribunal referred to the Department’s file, the applicant’s protection visa application, written submissions, including the written submission in support of his application for review, oral evidence and country information.  The Tribunal stated that:

“The applicant’s claim to refugee status rests on two broad categories of harm: A [sic] series of anonymous threats and insults received at his home; and the destruction by fire of his employer’s garage, in the course of which the applicant was dismissed from his employment.”

5                     The Tribunal largely accepted that the events claimed by the applicant had occurred. In its view, however, whether they were viewed individually or together they did not amount to persecution within the meaning of the 1951 Geneva Convention Relating to the Status of Refugees, as amended by the 1967 New York Protocol.  The Tribunal also did not accept that these incidents occurred “with the collusion of agents of the State, or that the State was unable or unwilling to provide the applicant with effective protection against these acts”. The Tribunal pointed to the fact that the applicant had not sought State protection in relation to the incidents of which he complained.  It stated, “I do not accept that to have raised these incidents with the arson investigator is to have sought protection”.  There was no relevant reason for the applicant to have failed to report these acts to the appropriate authorities, namely the local police, and to have sought protection.

6                     The Tribunal relied on independent country information concerning the position of Jews in Russia.  It noted that the Russian Constitution provides for freedom of religion but that this provision is not always respected. While Jews continue to suffer societal discrimination and there have been some recent incidents of violence and intimidation of Jews, nevertheless there have been attempts since 1998 to improve the situation.  The Tribunal also referred to President Yeltsin’s rebukes of prominent figures who made anti-Semitic statements and the Chief Rabbi’s statements in July 2000, “that the Jewish community in Russia experiences no more anti-Semitism than in any other East European nation and much less than in some countries” and that the Russian leadership has “a good attitude towards Jewish people”.

7                     The Tribunal also noted that crime, and particularly organised crime, remains a problem in Russia but said that there was some evidence that the authorities were making efforts to combat the problem. It also referred to President Putin’s attempts to combat organised crime.

consideration

8                     The application for an order for review listed three grounds of review, namely those mentioned in s 476(1)(a), (c) and (g) of the Act, but it provided no particulars. References to provisions of the Migration Act are to those provisions as they were before the amendments commencing on 1 October 2001. Written submissions made by the applicant referred only to the ground in s 476(1)(e). It was submitted that the Tribunal “entirely ignored the most significant fact, which made me fearful for my safety and life”.  The gravamen of the applicant’s complaint appears to be that the Tribunal ignored the fact that the investigator accused him of being a criminal and that despite the applicant proving his innocence the investigation continued.  He claimed that the investigator’s comments and attitude showed that the applicant was a suspect because of his Jewish ethnicity.  He further claimed that if he were to return to Russia a case would be fabricated against him and that he would be imprisoned.

9                     As Ms Abadee, counsel for the respondent, pointed out in her oral submissions this claim was not made at any point prior to this appeal. It was not made in the applicant’s written statement of 12 March 1999 supporting his application for a protection visa; it was not made in the letter attached to his application for a review of the Delegate’s decision filed with the Tribunal on 26 May 1999 and it was not made at the hearing before the Tribunal.  As was explained to the applicant at the hearing it is not now possible to consider this new claim.

10                  As the above summary of the Tribunal’s reasons shows the elements of the Tribunal’s decision were:

(a)        the Tribunal did not think the incidents of which the applicant complained were sufficiently serious, either individually or as a series, to constitute persecution;

(b)       the Tribunal did not accept that the acts were committed with the collusion of agents of the State; and

(c)        because the applicant had not sought State protection the Tribunal was not satisfied that the State was unable or unwilling to provide the applicant with effective protection.

11                  The applicant did not challenge the conclusion in (a) above. Nor, in the light of cases such as Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 and Minister for Immigration and Multicultural Affairs v Ibrahim (2000) 74 ALJR 1556, could he have done so with any prospect of success.

12                  Although the Tribunal accepted that the State protection could not be guaranteed it nevertheless was not satisfied that there was a real chance that the applicant would be persecuted.  In coming to this conclusion it relied on Federal Court decisions in Thiyagarajah v Minister for Immigration and Multicultural Affairs (1997) 73 FCR 176 at 179; Minister for Immigration and Multicultural Affairs v Prathapan (1998) 86 FCR 95 (“Prathapan”) and Efimcova v Minister for Immigration and Multicultural Affairs [1998] FCA 1138.  In particular the comments of Lindgren J in Prathapan are pertinent.  His Honour stated:

“It is not countervailing evidence to show that the authorities cannot guarantee immunity from persecution and reprisals.  The material on which Mr Prathapan relied did not even begin to suggest that level of ineffectuality of state protection that would allow or give rise to a real chance that he would be persecuted … regardless of his resorting to the French authorities”.

13                  In Ahmed v Minister for Immigration and Multicultural Affairs [2000] FCA 123 (“Ahmed”)the Full Court emphasised, as did the Tribunal here, the significance of the failure of the appellant in that case to seek police protection.  As a consequence the Court noted that “the Tribunal had no direct and particular evidence of what would be the likely result of such an approach”.  In the absence of such evidence the Court in Ahmed held that it was open to the Tribunal to find that the applicant would receive effective governmental protection.  The relevance of those comments to the present application is obvious.

14                  It is apparent from the applicant’s written submission and his submission at the hearing that the applicant’s real complaint about the Tribunal’s decision relates to the weight that the Tribunal attached to independent country information and its rejection of the applicant’s interpretation of the motivation behind the events that occurred to him.  Review on this ground would involve an impermissible trespass into the merits of the applicant’s claim.

15                  For these reasons the application must be dismissed with costs.

Associate:

Dated:              19 December 2001