Goncharov v Minister for Immigration & Multicultural Affairs

Federal Court of Australia|2001-10-29|Before: Sackville J

REASONS FOR JUDGMENT 1 This is an application for review of a decision of the Refugee Review Tribunal ("RRT") made on 22 May 2001. The RRT affirmed a decision of a delegate of the respondent ("the Minister") made on 20 December 1999 not to grant a protection (class XA) visa to the applicants. The application was filed in this Court on 22 June 2001. 2 The first and second applicants are husband and wife, respectively. The third applicant is their child. The RRT noted that only the first applicant claimed that he was a person to whom Australia had protection obligations under the Convention Relating to the Status of Refugees. As the RRT said, the fate of the second and third applicants' claims depends on the outcome of the first applicant's application for a protection visa. For convenience, I shall refer to the first applicant simply as "the applicant". 3 The application filed in this Court merely recites several grounds of review available under s 476(1) of the Migration Act 1958 (Cth) ("Migration Act"). Directions were made that included provision for the filing of an amended application and affidavit evidence on behalf of the applicant. In the event, no amended application or affidavits were filed. 4 The applicant did, however, file written submissions which were signed by a migration agent. At the hearing, the applicant appeared without representation, but was assisted by an interpreter skilled in the Russian language. The applicant's oral submissions were quite lengthy but, as is understandable, were directed principally to factual findings made by the RRT with which he disagreed.

THE CLAIMS 7 The applicant claimed that Mr Kim had extensive connections to Russia's political and financial elite. The applicant said that by February 1999 he had become aware that Mr Kim's corporation had provided large amounts of money for candidates seeking election, particularly a Vice-Governor of the St Petersburg region. The applicant considered that the objects of Mr Kim's largesse, especially the Vice-Governor, were to be regarded as enemies of the people. 8 According to the applicant, he met with Mr Kim at the end of February 1999 and asked Mr Kim some questions. Mr Kim told the applicant to keep out of areas that had nothing to do with him. The applicant then queried whether he should continue working for the corporation. Mr Kim is said to have responded "in a sinister way that a person could only leave him by dying". 9 In the following month, March 1999, the applicant, together with another Director of the Corporation (to whom the RRT referred as "X") wrote an anonymous letter to the St Petersburg Taxation Office and the Taxation Police. This letter enclosed material identifying organisations operating as covers for the political forces of the St Petersburg region. 10 Late in March 1999 the applicant said that he had a second "serious" talk with Mr Kim. In this conversation, Mr Kim said that the Chief of the Taxation Police had given him some documents containing information that could only have been known to the applicant or X. The applicant claimed that Mr Kim said that he (the applicant) would wish that he had never been born if he had in fact provided the material to the Taxation Police. 11 The applicant claimed that as a result of these events he became extremely concerned for his own safety and that of his wife and daughter. The RRT described his "central claim" as a fear that he would suffer serious harm through the actions of the Vice-Governor, or other people in power in the St Petersburg and north-west regions. His fear was said to be based on the fact that his actions against Mr Kim had potentially powerful repercussions for people like the Vice-Governor and his associates. 12 The applicant claimed that in view of these dangers he decided to leave Russia and made secret preparations for travel, including obtaining an Australian visa. He acknowledged that he went on an overseas business trip after his Australian visa had been granted, but explained this on the basis that he had to settle financial matters in Russia first. As soon as these matters were settled the family fled from Russia in secret, confiding only in X who had also decided to flee. 13 The applicant said that his fears were confirmed when police, a few days after his departure, visited his relatives and friends to inquire about his whereabouts. X had also been a victim of persecution and had been held by the police for a few days until he (X) gave information concerning the applicant.

THE RRT'S REASONS 14 The RRT found that the applicant was "generally truthful and credible in his oral evidence". The RRT, however, also concluded that the applicant's claims about the harm he feared were "overstated and exaggerated". 15 The RRT accepted that, through his employment, the applicant became aware of links between Mr Kim and the political power structures in the St Petersburg area. The RRT also accepted that Mr Kim was well connected politically and that, in a general sense, Mr Kim's links with particular politicians were known to the Russian public. 16 The RRT accepted the applicant's evidence that he had learned that there were financial links between Mr Kim and the Vice-Governor and that Mr Kim had been providing financial support for the Vice-Governor's political campaigns. The RRT found that the Vice-Governor enjoyed strong support from Moscow and had strong links with some of the most powerful people in Russia. 17 The RRT also accepted the substance of the applicant's account concerning the leaking of financial information to the authorities. It found that the applicant had been given "an important warning" by Mr Kim and that his actions in providing information to the authorities had been thwarted by Mr Kim's personal connections with the head of the Taxation Police. The RRT accepted that Mr Kim's political connections had been so good that they had protected him from any serious consequences flowing from the applicant's efforts to expose him. 18 The RRT found that Mr Kim had called the applicant to another "serious meeting" in late March 1999. At that stage, Mr Kim knew about the applicant's actions. The RRT accepted the applicant's account of what happened at that meeting. 19 The RRT pointed out that, apart from the serious warnings given by Mr Kim to the applicant, nobody took any action against him before he left Russia almost six months later, despite the fact that he had lived at the same address throughout that period. The RRT found that the fact that the applicant had not been harmed by those he feared strongly suggested that they had no serious interest in causing him harm. For that reason, the RRT was not satisfied that the warning given by Mr Kim was "sufficiently serious", either on its own or in combination with other circumstances, to give rise to a well-founded fear of persecution should the applicant be returned to Russia. 20 The RRT was not satisfied that the police had visited the applicant's family after his departure from Russia. Nor was the RRT satisfied that any member of the applicant's family in Russia had experienced problems by reason of the authorities or Mr Kim having an interest in him. 21 The RRT accepted independent evidence to the effect that high levels of political and bureaucratic corruption continue to exist in Russia. But in the RRT's view, that evidence did not support the applicant's claim that he faced persecution in Russia "because of the particular low-level actions he took in support of democracy". The independent reports indicated that Russia's citizens generally enjoyed freedom of assembly and association and, with limited exceptions, could actively protest against government decisions of which they disapproved. 22 The RRT also considered it significant that the applicant had left Russia without any difficulties. This was a further indication that the authorities had no special interest in him, particularly as he was required to present his Australian visa at the airport. Serious doubt was cast on the applicant's claim to have a well-founded fear of persecution by the fact that he travelled to Finland before departing Russia for Australia and to Holland en route to Australia, yet did not apply for refugee status in either of those countries. 23 The RRT considered that there was an issue as to whether any harm feared by the applicant arose because of his political opinions (or some other Convention reason) or simply because he was at risk of individuals seeking revenge against him. The RRT did not find it necessary to make a final determination on this question, since it had concluded that his fear of persecution was not well-founded.

THE APPLICANTS' SUBMISSIONS 24 The applicants' written submissions contend that the RRT "totally failed to examine" five aspects of the case presented to it. These were identified as the following: · persecution of the applicant's relatives after his departure from Russia for Australia; · the seriousness of the threats made by Mr Kim; · the political situation in Russia; · the fact that the applicant's involvement in compromising Mr Kim and the Vice-Governor was not established until after the applicant had left Russia; and · the fact that the applicant had dealt with high profile political figures. 25 The contentions raised in the applicants' written submissions in substance amount to an argument that the RRT had erred in its findings of fact. In any event, none of the contentions is sound. · The RRT rejected the applicant's claim that his relatives had suffered harm in consequence of his having divulged information to the authorities. The RRT based its finding on the fact that neither the authorities nor Mr Kim had displayed any interest in the applicant before he left Russia. It is therefore not correct to say that the RRT overlooked this aspect of the applicant's case. Whether it reached the correct factual conclusion is not to the point. · Similarly, the RRT considered the nature and significance of the threats made by Mr Kim to the applicant. Indeed, the RRT set out the nature of the threats and the circumstances in which they were made in considerable detail. The RRT concluded, however, that, in all the circumstances, the threats were not sufficiently serious to give rise to a well-founded fear of persecution. This was a factual judgment for the RRT to make. · The RRT assessed the political situation in Russia by reference to independent country information available to it. Contrary to the oral submissions made by the applicant at the hearing of this application, the country information was not out of date. The RRT's reasons include, for example, a substantial extract from a report published in 2001. It was on the basis of this information that the RRT made its findings concerning freedom of assembly and association in Russia and concluded that the applicant's claim that he faced persecution because of his actions in support of democracy should be rejected. · There was no suggestion before the RRT that Mr Kim and his associates learned of the applicant's actions only after he had left Russia. On the applicant's own account, Mr Kim was well aware of what had occurred by the time of the second interview in late March 1999. The RRT's finding on this issue corresponded with the applicant's evidence. · The RRT accepted that the applicant had had dealings with high-profile political figures. As Mr Braham pointed out on behalf of the Minister, the applicant's claims were assessed in the light of that fact. 26 In his oral submissions, the applicant referred to s 430 of the Migration Act. It was not clear from his submissions in what respect the RRT was said not to have complied with the requirements of s 430. In any event, the High Court has held that any failure on the part of the RRT to make a finding of fact on a material question does not establish that there has been a failure to observe a "procedure…required" by the Migration Act: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1, at 20, per McHugh, Gummow and Hayne JJ. Moreover, the RRT provided detailed reasons for its findings of fact. In so far as s 430 of the Migration Act imposes any obligations on the RRT, in this case they were met. 27 The applicant also referred to the ground of review specified in s 476(1)(g) of the Migration Act, namely that there was no evidence or other material to justify the making of the decision. Section 476(1)(g) of the Migration Act is, however, qualified by the terms of s 476(4). The applicant is not able to satisfy either par (a) or par (b) of s 476(4). It follows that the ground specified in s 476(1)(g) of the Migration Act has not been established. In any event, there was evidence before the RRT to justify the decision. Even if it erred in its assessment of the evidence (an issue on which I express no view), that would not constitute a ground of review. 28 The applicant put forward a number of other complaints about the RRT's reasoning. All of these were concerned with the merits of the RRT's findings of fact. These complaints, assuming they have any substance, do not establish any ground of review available under s 476(1) of the Migration Act.

CONCLUSION 29 The application must be dismissed. The applicant must pay the costs of the Minister. I certify that the preceding twenty nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

Associate: Dated: 29 October 2001 The Applicant was unrepresented. Counsel for the Respondent: Mr P Braham

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