N96/11917 [1998] RRTA 414 (28 January 1998)

No issue arises in this case as to the validity of the application for review or as to the Tribunal's jurisdiction to review the delegate's decision.

A criterion for a protection visa is that at the time of the decision the Minister, or on review the Tribunal, is satisfied that the applicant is a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees: ss.5(1) and 36(2) of the Act. Australia is a party to the Refugees Convention and the Refugees Protocol and has protection obligations to people who are refugees as defined in them.

Article 1A(2) of the Convention defines a refugee as any 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 or, 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.

This definition contains four key elements. First, the applicant must be outside his or her country. Second, the applicant must fear persecution. Not every threat of harm or interference with a person's rights for a Convention reason constitutes "being persecuted". Mason CJ referred to persecution as requiring "some serious punishment or penalty or some significant detriment or disadvantage" (Chan Yee Kin v MIEA [1989] HCA 62; (1989) 169 CLR 379 at 388). Harm or threat of harm as part of a course of selective harassment of a person, whether individually or as a member of a group which is subjected to systematic harassment, amounts to persecution if done for a Convention reason. In appropriate cases it may include single acts of oppression, serious violations of human rights, and measures "in disregard" of human dignity. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors. Third, the reason for the persecution must be found in the singling out of one or more of the Convention reasons - race, religion, nationality, membership of a particular social group or political opinion. The phrase "for reasons of" serves to identify the motivation for the infliction of the persecution.

Fourth, the applicant's fear of persecution for a Convention reason must be a "well-founded" fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a "well-founded fear" of persecution under the Convention if they have genuine fear founded upon a "real chance" of persecution for a Convention stipulated reason. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent. A "real chance" is one that is not remote or insubstantial or a far-fetched possibility.

Finally, the applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country. The object of the Convention is to provide refuge for those who, having lost the de jure or de facto protection of their governments, are unwilling to return to the countries of their nationality. It follows that whenever the protection of the country of nationality is available, and there is no ground based on well-founded fear for refusing it, the person concerned is not in need of international protection and is not a refugee. Whether an applicant satisfies the Convention definition is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

These principles were established by the High Court in Chan Yee Kin v MIEA [1989] HCA 62; (1989) 169 CLR 379, Applicant A & Anor v MIEA and Anor (1997) 142 ALR 331 at 354 and MIEA v Guo & Anor (1997) 144 ALR 567 at 575-6, and the Full Federal Court in Ram v MIEA & Anor [1995] FCA 1333; (1995) 57 FCR 565 at 568.

The applicant's claims are set out in written submissions to the Department, an interview with an officer of the Department, written submissions to the Tribunal and oral evidence given to the Tribunal on 14 January 1998. They are as follows.

The applicant is a professional in his late forties from Moscow. In his application for a protection visa, lodged in August 1995, the applicant said that he had been educated at an institute in Moscow during the 1970s. During this period he qualified as an military interpreter in a foreign language and, as a consequence, he was awarded the rank of Lieutenant. The applicant said that he had joined the Komsomol while at school and had been made a member of the Communist Party of the Soviet Union (CPSU) before entering the institute. The applicant said that at the conclusion of his education he was posted to an overseas country. He said that he returned to Moscow, resigned from the CPSU and became unemployed. Later, he said, he was appointed as head of a church organisation. He travelled extensively during this period. The applicant said that he travelled to the overseas country and sought asylum. He was later required to leave the overseas country. He travelled to Australia in 1995.

The applicant said that from the time he began studying at the institute the Committee for State Security (KGB) tried to force him to work for them. He had refused, he said, and as a consequence faced constant difficulties. The applicant said that he felt constrained to leave Russia for the overseas country. The applicant said that since the overseas country was overpopulated he could not receive refugee status and he had to return to Russia. The applicant said that in 1995 he received orders, as a reserve officer, to go to another region. He was told that he could not leave Moscow without permission.

At the departmental interview in March 1996, the applicant made further claims. He said that the reason he had been conscripted to fight in this other region was because he opposed the authorities. The applicant said that he had never been interested in bearing arms or defending the Russian State. In the 1980s the KGB had tried to conscript him into the Soviet Army because he refused to cooperate with them. He said that he suspected that his then employer, the church organisation, intervened on his behalf.

The applicant said that he is a practising member of the Russian Orthodox Church. His parents and grandparents were very religious and attended Church during the Communist years. The applicant said he would refuse to fight in the other region on religious grounds.

The applicant said that his difficulties with the KGB began in 1977. He had been offered an opportunity to cooperate with the KGB by informing on others at the institute. He refused. He was asked to cooperate many times and told he was jeopardising his future by refusing. As a result, he said, he was unable to find employment until the late 1970s. He said that he obtained a position as an interpreter in the overseas country. The applicant said everything went smoothly until 1980. At that time he was working for an employer in the overseas country. The KGB asked him to spy on experts working for this employer. When he refused his stay in the overseas country was terminated. The applicant said that he resigned from the CPSU on his return to Moscow. He said that this was an extraordinary thing to do because of the CPSU's connections with the KGB.

The applicant said that he then obtained a position. He said that he worked for the church organisation. The applicant said that he was not allowed to go abroad until 1984. He visited a second overseas country. On his return he was summonsed to the Council of Religious Affairs and told not to be so exuberant about the second overseas country in conversations with others. The applicant said that he was 'stupefied' when he realised that they knew what he had said because his telephone was monitored.

In 1988, the applicant said, he was asked by the KGB to inform on people who worked for his organisation and on guests of the organisation. He refused. As a result the KGB told him, he said, that he would be drafted into the Soviet Army and posted to the first overseas country. The church organisation used his influence to allow the applicant to stay. In 1990 or 1991, he said, he was asked to report on the church organisation to the KGB. He told the church organisation about this approach. In 1991, the applicant said, he attended the Book Fair in the first overseas country and considered defecting but decided against it. In 1992 he said he decided to go. He resigned his position and he travelled to the overseas country as an interpreter. He applied for asylum there. In 1995 his application was rejected. He determined to travel to Australia but had to pay a $US500 bribe to get his passport renewed.

At the hearing on 14 January the applicant said that he had a long term ambition to be accepted into the Institute. He first had to do his Army Service as a conscript. His parents, who were professionals, had offered to help him avoid service. He had refused as he wanted to go to the Institute. He said that he had felt strongly that he did not want to bear arms. He had therefore arranged to do his Army service in a Construction Battalion. After the Army he had joined the Communist Party of the Soviet Union as part of his strategy to enter the Institute. The Tribunal said that it had understood that it was almost impossible to enter the Institute without considerable influence being exerted. The applicant agreed. He said that he had been helped by a number of critical articles in 'Pravda' and other newspapers which complained that the Institute was only open to sons and daughters of the privileged. The applicant said that when he applied to the Institute he had done very well in the examinations. Even so, he said, he would not have been accepted because of his lack of influence under normal circumstances. However, the Institute, on this occasion only, accepted that it had to bow to pressure. It created a separate faculty specifically to prepare students for entry open only to workers. The applicant qualified for entry. His application was, he said, cleared by the KGB.

The applicant said that in his final year he underwent training in the military and was awarded the rank of Lieutenant. The applicant said that during his time at the Institute he twice had difficulties with the authorities because he had been caught attending Russian Orthodox Churches. On graduation, he said, he had been called into the Dean's Office and introduced to some men. They had suggested to him that he should work for the KGB. He said that he had been surprised. The Tribunal asked why he had been surprised. It noted that Western diplomats in Moscow with knowledge of the Institute at that time were convinced that the Institute worked as a 'feeder' institution for the Ministry of Foreign Affairs, the Ministry of Foreign Trade and the KGB. The applicant agreed that this was indeed the case. He said that he knew that some from the Institute had gone on to do further study with the KGB before taking up appointments with them. The applicant said that he had not wanted to work with the KGB and had declined the offer. The Dean, and the KGB officers, had warned him of the consequences of such a refusal. Despite this he had persisted.

The applicant said that he had encountered great difficulties in being employed. He said that eventually he had applied for a translator position with the Minister of Energy. He was successful and, after obtaining the necessary KGB clearances, he was posted to the overseas country. The applicant said that he had a five year contract and that he enjoyed life in the overseas country. Then the KGB re-entered his life. He was doing some work under the control of the Soviet Embassy in the overseas country. He was asked by some KGB officers stationed in the overseas country to report on the activities of other Russians. He again refused. The applicant said that his contract was terminated and he had been forced to return to the Soviet Union. The applicant said that for the next two years he was unemployed. He had resigned from the CPSU.

In 1982, he said, he had been successful in obtaining a position in the church organisation. The Tribunal said that it appeared on the surface that this was an odd choice for someone who did not want to work with the KGB. It noted prevailing Western diplomatic opinion at the time, and the view of experts on the KGB, that the church organisation was thoroughly infiltrated by the KGB. The applicant said that he had not seen it that way at the time. He needed a job to support his family. He agreed, however, that the church had been the subject of considerable KGB attention and that many of the church hierarchy were known or suspected KGB operatives. The applicant said that he had travelled widely during his time with the church without encountering any difficulties. He said that he had been approached on a number of occasions to provide reports for the KGB but had refused.

The applicant said that he had considered leaving Russia as early as 1991. He had not done so, despite an opportunity provided by his official attendance at the Book Fair in the overseas country, because he did not want to cause trouble for his employer. In 1992 he had left the church and travelled to the overseas country. This time he had stayed in the overseas country and applied for asylum. The applicant said that his application had been rejected. He had received a brief hearing and then told he had to leave the country, which he did in 1995.

The applicant said that while in the overseas country he had applied to go to Australia but the application had not been successful. The applicant said that when he returned from the overseas country he had been alarmed to be taken aside by immigration officials and kept at the airport for some hours. He thought it was because he was known to be a defector. He was relieved when he discovered that the problem was because of his possessing an old Soviet passport rather than a Russian passport. The applicant had determined to travel to Australia by some means as soon as possible. As a consequence, he said, he had not tried too hard to find work. He said that he was surprised to be summonsed, in 1995, by the local Conscription Committee. He said that this was the time of the Chechenya conflict. His surprise came from the fact that he was in his forties at the time and had no direct military experience. He said that he considered not attending as directed but that he thought that he might well be arrested as a consequence. The applicant said that he was by far the oldest person so summonsed. He was given a mobilisation notice telling him to be ready to be recalled to duty at a day's notice. The applicant said that he considered the mobilisation notice, and the call to attend the Conscription Committee, to have been orchestrated by the KGB as part of its continuing campaign against him.

The applicant said that he had heard nothing further about the mobilisation notice and he had left for Australia in 1995. He said that since his departure people had been questioning his wife about his whereabouts. He said that he acknowledged that his mobilisation notice required him to not leave Moscow without notifying the Conscription Committee and that he had not done so. The applicant said that once he had violated that requirement he was in trouble with the law. He said that he understood from his wife, on the basis of conversations with friends in the Militia, that an official search had been instituted for him. He also knew from his wife that some of those mobilised with him had been called to active service. The applicant said that his case was covered by new Criminal code of the Russian Federation. Article 80 said that he could face up to five years imprisonment for avoiding military conscription. Article 328 said that he could be fined up to 500 units of minimum wage or imprisonment of up to two years.

The Tribunal asked The applicant why he had left Russia to travel to Australia. The applicant said that because of his refusal to cooperate with the KGB he had been victimised by them. He could not live in Russia. The applicant said that the mobilisation order issued in 1995 was proof the KGB still had an interest in him and was determined to continue their harassment of him. The KGB had over the years threatened him with military service in their attempts to force him to work for them. The applicant said the KGB, by whatever name it now uses, had not lost its powers. The applicant added that the KGB also used threats against his family to intimidate him and that these were continuing. His daughter had been denied a place on a school trip purely because of the continuing KGB vindictiveness.

The applicant said that if he returned he would be picked up immediately and he would be charged with having avoided answering a mobilisation order. He said that he expected he would be imprisoned. The applicant said that he accepted that he had broken the law and would be punished on that basis but he said that the reason he had been placed in that position was because of his long standing refusal to work for or with the KGB. He added that he would refuse to fight in any conflict on religious grounds.

The Tribunal considered a number of publications including the United States Department of State Country Report on Human Rights, Russia, 1996; a Russia Review, Vol 3, Number 96, dated 29 July 1996, article titled 'New Spy in Town'; Jane's Intelligence Review Vol 7, Number 8 of August 1995 article titled 'Russia's Federal Security Service'; United States Department of State 'Russia -Profile of Asylum Claims and Country Conditions -1994'; John Barron "KGB"; Martin Walker "Martin Walker's Russian : Dispatches from the Guardian's Correspondent in Moscow".

The Tribunal noted from the Jane's Intelligence Review article that "One of the great paradox's about 'democratic Russia" is that the measures most associated with democracy - specifically the dissolution of the CPSU and the command economy - have given a new lease of life to several bastions of the old totalitarian order. Thanks to these developments, the security and intelligence services, the armed forces and the state nomenklatura have become not only more opaque to outsiders and more independent of their notional political masters but also semi-commercialised entities, operating with a mixture of state, institutional and private agendas. Few in Russia now dispute these facts and, if they outrage many, others have learnt to turn them to their advantage....Not least advantaged is the former KGB...Parliamentary control of the security services is a charade..President Yeltsin has subordinated the former KGB to the Russian Federation Security Council. This operates under his chairmanship and behind closed doors." The article continued.. "the essence and nature of the special services in Russia have never been subjected to serious transformation...the main rule in Russia, as Yeltsin describes it, is that 'any action capable of damaging national interests should be prevented or neutralised."

On the question of the mobilisation of reservists, the Tribunal noted that according to Scott and Scott's, 'The Armed Forces of the USSR' "reserve officers under 30 years of age may be called up for two to three years of active duty if their specialities are required...Reservists, both officers and enlisted men, are subject to attending military refresher training courses up until the age of 50."

The Russian Military Law on Military Obligation 1993 allows for the creation of a Reserve 'to bring Russian Federation Armed Forces manning to full strength based upon mobilisation and in wartime." Article 48.5 states that a serviceman is released from military service with enrolment in the reserve. Article 51 divides the Reserve into 3 categories for those aged up to 35, 45 and 50 years. Article 52 covers Retraining for Reservists. The Retraining can not exceed two months.

The BBC reported on 1 February 1996 that "about 10,000 Russian reservists will be called up for military courses of instruction in 1996, a source on the General Staff said...According to the source, the main goal of these courses is to achieve a higher level of preparedness for mobilisation of troops and check the system of control units during mobilisation. In addition the performance of military commissariats will be analysed. The source said that during the courses, lasting not more than two months, many reservists will acquire new military professions needed in the Army. He stressed that the participants in the courses would not be sent to Chechenya."

Although it is generally the case that applicants who are otherwise credible and plausible should, unless there are good reasons otherwise, be given the benefit of the doubt, it is not the case that the evidence of the applicant should be believed by the Tribunal unless specifically disproved by the objective evidence before the Tribunal. Rather it is for the Tribunal to decide what facts it finds on consideration of all the evidence, subjective and objective. This requires the Tribunal to not only consider inconsistencies but also to determine what evidence it finds credible: Nicholson J. in Chen Xin He v Minister for Immigration and Ethnic Affairs, No. WAG 124 of 1994, 23 November 1995 (unreported), at p.11. The Tribunal is not required to accept uncritically any and all claims made by applicants: the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is well founded or that it is for the reason claimed. It is for the Applicant to persuade the reviewing decision-maker that all the statutory elements are made out (MIEA v Guo & Anor, (1997) 144 ALR 567 at 596).

It was also stated in Chan (per McHugh at 428) that under the 1951 Convention "It was unlikely...that a State party was expected to grant refugee status to a person whose account, although plausible and coherent, was inconsistent with the State's understanding of conditions in his or her country of nationality."

The Tribunal accepts that The applicant may have encountered difficulties as a result of his refusal to cooperate with KGB officers. In light of the published evidence on the KGB activities in the former Soviet Union and the acknowledged way in which the KGB and those prepared to report to the KGB permeated throughout society in general and the area in which the applicant studied and aspired to work the Tribunal accepts that the applicant would have been aware of the consequences of his refusal to cooperate. The Tribunal finds it puzzling, however, that despite the continual threats from 1977 onwards that the applicant was able to take up a contract abroad and that he subsequently joined another organisation, the church organisation, which the published evidence on the KGB of the time indicates was heavily infiltrated by the KGB and that he obtained, on more than twenty occasions, according to his own account, permission to travel to a number of countries. Foreign travel was a privilege given to few in the Soviet Union at that time. The Tribunal does not accept that someone with the profile claimed by the applicant would have been able to travel to the West without KGB approval. That he received such approval, the Tribunal finds, demonstrates that his claims of KGB harassment and discrimination because of his claimed political stance in refusing to work for the KGB is not credible. The Tribunal does not accept that there is a real chance that the applicant faces persecution for reason of his political opinion, expressed through his refusal to assist the KGB, should he return to Russia.

The Tribunal considered the question of the applicant's departure for Australia while an outstanding mobilisation order was issued. The Tribunal accepts that it was unusual for someone of his age to be told to prepare for mobilisation. In light of the evidence cited above which indicates that the maximum period of recall for someone of his age was two months and the Defence Ministry statement that no reservists would be sent to Chechenya the Tribunal does not accept that the applicant would have had to go to Chechenya. In any event, the Tribunal notes that the applicant, having been refused asylum in the overseas country, returned to Russia in 1995 with the intention of travelling to Australia as soon as possible because of his claimed fear of continuing KGB (FSB) harassment. The intention to leave predated the mobilisation notice. If the applicant faces difficulty because he left Russia without informing the local Conscription Committee it is because he has contravened a legal requirement applicable to all Russian reservists. The Tribunal does not accept that the issuance of the mobilisation notice was the continuation of the claimed KGB harassment against the applicant because of his refusal to cooperate with the KGB years earlier. The Tribunal is not satisfied that there is a real chance that the applicant faces persecution for a Convention related reason, because he violated the terms of a mobilisation notice, in the foreseeable future should he return to Russia.

Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicant does not satisfy the criterion set out in s.36(2) of the Act for a protection visa.

The Tribunal affirms the decision not to grant a protection visa.