NACB v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 The appellants are a mother and her adult son, both citizens of Russia. We will refer to the mother as the appellant. They arrived in Australia as visitors on 9 March 2000 and applied for protection visas on 7 April 2000. Only the appellant made a specific claim for refugee status, although the son also claimed to be a refugee. The appellant's daughter-in-law, who also arrived on the same date, claimed to be a member of the same family unit and combined her application with their applications. 2 The appellant is aged in her late forties. She worked from 1976 until January 2000 as a physical education teacher in St Petersburg. In her statement accompanying her original application for a protection visa, she said that her son had been granted a deferment from being called up for military service while studying at the Sports Academy in St Petersburg. After he had completed three years at the Academy, he took leave of absence and was subsequently drafted into the Russian forces on 30 July 1999. The appellant said that, after two months training, her son had been sent to the town of Mozdok as an armoured personnel carrier driver. She said that the unit in which her son had served controlled the border areas between Russia and Chechnya. 3 The appellant said that on 12 October 1999, her son's armoured personnel carrier was destroyed by a mine and he was taken prisoner by Chechens. She said that he and other prisoners of war were beaten brutally and fed only bread and water once a day. She said that in November 1999, her son had been placed in a truck with two armed Chechens and had been told that he was going to be executed. She said that he grabbed a hand grenade from one of the Chechens, pulled the pin, dropped the hand grenade in the truck, and jumped out of it while it was moving at full speed. She said that, after four days, her son had been picked up by a Russian armoured personnel carrier and taken to a hospital in Mozdok on 10 November 1999. 4 The appellant said that she received a telephone call on 18 November 1999 telling her where her son was situated. On 22 November, she took her son to Moscow to her sister's home. She said that she was required to return to work in St Petersburg and that on 1 December 1999, she had begun to receive telephone calls from a caller with a Caucasian accent asking for her son. This was intended to convey that the accent indicated a Chechen speaker and therefore she believed the Chechens were interested in her son. The appellant said that her son suffered serious psychological trauma and was still screaming and talking in his sleep after she located him. 5 The appellant's case as formulated in the application for protection visa was that, if returned to Russia, her son would be faced with physical extermination and that the authorities could not and would not protect her, as they were involved in political power struggles and were not interested in protecting people like the appellant. The fear was of Chechen revenge for the actions of her son against which he could not be protected. 6 On 2 May 2000, the delegate of the respondent ("the Minister") refused the application on the basis that the appellant's claims, at face value, were not related to any of the five grounds provided for in Article 1A of the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 ("the Convention"). The delegate concluded that the appellant's son was not pursued by the Chechens because of race, religion, nationality, membership of a particular social group, or political opinion. The actions of the Chechens were found to be solely motivated by their desire to avenge the death of one of their commanders killed by the appellant's son when he escaped from captivity. Independently of this finding, the delegate was not satisfied that the Russian authorities would be unwilling or unable to protect the appellant and her family from Chechen revenge attacks. This was based on independent country information. The delegate also considered that the appellants had the option of relocating to another part of the country where they would be anonymous. 7 In her application for review of the delegate's decision by the Refugee Review Tribunal ("RRT"), the appellant repeated the claim that her son had been taken prisoner by the Chechens and had escaped by killing a commander. In March 2002, the appellant produced to the RRT two letters from a friend, dated 22 June 2001 and 23 October 2001, and a letter from her mother dated 2 February 2002. The letters from the appellant's friend referred to the fact that the appellant lived at her home before leaving for Australia. They stated that in May and again in October 2001, the local police came to see the appellant's friend asking questions about the appellant and her son and seeking information in relation to whether she had left "some papers, written material or diaries". The letter from the appellant's mother of 2 February 2002 stated that just before the New Year 2000, officers, who said they were from the Russian Public Prosecutor's Office, visited her and showed her "some paper" telling her it was a search warrant and asking her to produce anything belonging to the appellant's son. The appellant's mother also stated in her letter that one of the officers asked about the appellant, what she was doing overseas and when she would return to Russia. She said that she had also been asked about "some diary and photos". 8 The RRT hearing took place on 15 July 2002. Eight days after the hearing, on 23 July 2002, the RRT member wrote to the appellant stating: "The Tribunal has information that would, subject to any comments you make, be the reason, or part of the reason, for deciding that you are not entitled to a protection visa. The information is as follows. In the statement accompanying your original application you claimed that you and your son had been threatened because your son had mortally wounded a Chechen commander when he had escaped from the Chechens and they had sworn to avenge him. At the hearing on 15 July 2002 you and your son claimed that your son had witnessed a meeting between the Chechens who had captured him and Russian officers. You said that the people who had committed treason were pursuing you and your son to try to cover up the crime they had committed and that they were using the police and the Procurator's offers to try to find you and your son. You said that your son had told you what he had witnessed and that you had mentioned this in letters you had written to the General Prosecutor's office and the Commandant's office before you left Russia. This information is relevant because the fact you did not mention these matters in the statement accompanying your original application casts doubt on whether you and your son are telling the truth about these matters." 9 The appellant replied on 12 August 2002, prior to the RRT decision. 10 In that letter she said: "… due to fear, anxiety and distress we were physically and morally unable to analyse situation from logic point of view and come up with actual reasons of our persecution. That's why in our written statement we mentioned the most significant facts but ignored facts, which, as we believed, had nothing to do with our case. We did not claim that I wrote letters to the General Prosecutor's Office and the Military Office, because, at the time we saw no connection between this fact and our persecution by Chechens. We did not mention that my son saw traitors in the Chechen camp because we saw no connection between this fact and the fact that we were persecuted by Chechens. I believe, at that time it was very reasonable for us to believe that we had been subjected to threats and violence because my son killed a Chechen commander. Another issue which is to be raised here is the fact that over the past six months we have received a number of letters from Russia. Even though we still were in doubt as to why the Militia had been interested in us, we provided the Tribunal with these letters and their translations. I wish to stress - around six months ago the Tribunal received some new evidence, or it's better to say - additional evidence regarding our case. I am certain that anyone in my position would rethink his or her case after receiving such vital information. …" 11 In the reasons for decision, the RRT member noted that the appellant confirmed that she had written letters to the Prosecutor-General's office and the Commandant's office and said that she had done this as soon as she had brought her son to Moscow. This was in November 1999. She said that she had expressed all her anger in these letters. Copies of the letters were not produced. She had said that she was furious about everything that was happening in the army, the betrayal and the complete lawlessness. She said that her son had told her that he had witnessed a meeting between the Chechen and Russian soldiers and that she had mentioned this in her letters to the authorities. She referred to the letters she had received from her friend and mother which she had produced. She said that she had only understood the significance of the son witnessing the meeting between Russian soldiers and the Chechens after the application for refugee status and she had not understood its significance in Russia or during the early period of her stay in Australia.