Efimcova, Irina v Minister for Immigration & Multicultural Affairs [1998] FCA 1138

EX TEMPORE REASONS FOR JUDGMENT In this matter, as in so many Refugee Review Tribunal matters, one can only have a great deal of sympathy for the applicant. Mr Karp has put to the court very clearly all the matters that could be said to support her case. The tribunal to which the statute entrusts the task of finding the primary facts, and also drawing factual conclusions about those primary facts, found that the applicant's story was true in all essentials. But nevertheless her case failed at the final hurdle. That was because the tribunal, after taking account of information available to it about conditions generally in Moldova, the State from which the applicant comes and where she claims to have suffered persecution, and after taking account of the degree to which the policies of the government of Moldova promote racial tolerance and oppose anything in the nature of racially motivated persecution, was unable to accept that the applicant could not get protection from her own State. It is true that Moldova's protection did not prevent a nasty assault upon her, on an occasion just before she left to seek asylum in Australia. But it must be recognised that such incidents can occur anywhere, and that when they occur police are frequently unable to detect the miscreant or miscreants, particularly when, as in this case, a delay of some two hours occurs before the police are brought into the matter. The findings made by the tribunal did not suggest a general failure of protection of the citizens of Moldova from racially motivated persecution. On the contrary, information about the views of the Russian and Ukrainian governments, each of which is represented by minority communities of something of the order of 13 or 14 per cent of the population in Moldova, suggested that those governments considered the protection of ethnic Russians and ethnic Ukrainians, respectively, to be satisfactory. Other evidence, such as the use of the Russian language in Moldova and its status as a language in that country, supported the view taken by these neighbouring powers. The tribunal reached its final conclusion in these terms. It said: "In the present case the applicant is a woman of petite build who is a single mother. This may make her feel particularly vulnerable to threats made against her and may lead to a great sense of fear on her part. The fact that the authorities do not appear to her to have taken her complaint seriously (for whatever reason) raises the question of whether there has been a failure of state protection in this instance, despite the evidence cited above as to the good intentions of the Moldovan authorities. In considering the applicant's evidence in this regard, the Tribunal is not satisfied that state protection has failed the applicant. The evidence cited above indicates that the Moldovan authorities do take very seriously any threat to its citizens motivated by their ethnicity or race, and acts" - I think the tribunal meant to say "and the authorities act" - "to prevent such things from occurring. In this regard the Tribunal is satisfied that the protection offered to the applicant against attacks made upon her by reason of her ethnicity is effective." Bearing in mind the quantity of evidence of the goodwill of the authorities, and the paucity of evidence of anything more than verbal abuse and threats by an individual, or possibly some individuals, against the applicant, this conclusion seems to me to have been open on the evidence. In substance, I think the tribunal here found that State protection was not at that level of ineffectuality that would allow or give rise to a real chance that she would be persecuted, regardless of her resorting to the Moldovan authorities, to paraphrase the way in which the relevant principle was applied by Lindgren J, with whom Whitlam J and I agreed, in Minister for Immigration and Multicultural Affairs v Nagaratnam Prathapan (unreported, 12 August 1998) at page 16 of the judgment. Mr Karp referred me to the passage in the judgment of Davies J in Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300 at 307 where his Honour referred to the fact that an appellate court, or a court undertaking judicial review, may in some cases examine decisions, not minutely, but by comparing the result obtained with the undisputed facts so as to draw an inference that an error of law must have occurred; but this is not a case of that kind. I do not think the findings here came anywhere near providing support for reasoning of the nature of that to which Davies J was referring in a judgment with which I agreed. For these reasons the application must be dismissed. For the reasons I have indicated in argument, I will make no order as to costs. I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Burchett