Shumilov v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 There is before the Court an appeal from a judgment of a Judge of the Court: see Shumilov v Minister for Immigration & Multicultural Affairs [2001] FCA 516 (Beaumont J, 27 April 2001, unreported). By that judgment, the primary Judge dismissed an application for review of a decision which had been made by the Refugee Review Tribunal ("the RRT"). The RRT's decision had been one to affirm a decision which had been made by a delegate of the present respondent, the Minister for Immigration & Multicultural Affairs ("the delegate"). The delegate's decision had been one to reject an application for protection visas which had been made by the present appellants, Mr Semyon Shumilov and Ms Galya Shumilov. (The female appellant's surname is actually Shumilova, but since she has been called Shumilov both in her own application for review of the RRT's decision and in her own notice of appeal from the primary Judge's judgment, we will also call her by that name in these reasons for judgment.) 2 Ms Shumilov is the mother of Mr Shumilov, who is himself an adult. The Shumilovs are both Uzbekistani nationals of Russian ethnicity. In support of their application for protection visas, each had claimed that, owing to well-founded fear of being persecuted in Uzbekistan for reasons of (relevantly) race (that is, his or her Russian ethnicity), he or she was both outside Uzbekistan and unwilling to avail himself or herself of that country's protection. That claim had, however, been rejected, both by the delegate and by the RRT. 3 Before the primary Judge, the Shumilovs pursued unsuccessfully a number of grounds of review of the RRT's decision. Their notice of appeal from the primary Judge's judgment alleged that the primary Judge had erred in rejecting each of those grounds of review. However, in the result, the Shumilovs pursued on the hearing of their appeal the primary Judge's rejection of only one of those grounds of review. As the matter was dealt with in their notice of appeal, the Shumilovs complained in substance that the primary Judge had erred in holding that the RRT's decision had not involved an error of law of one of the two types listed in par 476(1)(e) of the Migration Act 1958 (Cth) ("the Act") as that provision read at the date of the primary Judge's judgment. That error of law on the part of the RRT was said to have been its "failing to consider whether the motivation for the persecution of the Applicants [sic] by corrupt Uzbek [sic] Police was, in part, motivated by [sic] the Applicant's [sic] Russian ethnicity". 4 In order to place in context that allegation of error of law by the RRT, we should mention that among the Shumilovs' claims before the RRT had been that they had, by reason of their Russian ethnicity, been the victims of specific incidents of extortion in the past at the hands of Uzbekistani police (the Militsia) and traffic police, and that they had a well-founded fear of such extortion's being repeated in future for the same reason if they should return to Uzbekistan. At one point in its statement of findings and reasons, the RRT summarised the Shumilovs' claims regarding specific past incidents of such extortion as follows: "In his original application the Applicant [that is, Mr Shumilov] said that the local militia … persecuted Russians. He said that after his sister's departure in 1994 militia officers had come to his home to extort money although … the Applicant's mother said that she had never in fact paid them any money. … [T]he Applicant said that in January 1997 he had been taken to a militia station…. He said that they [that is, militia officers] had demanded money for his release…. He also said that the traffic police frequently stopped his car and extorted enormous fines. He said that on one occasion they had impounded his car and he had had to pay double the fine to get it back." 5 We do not find in the RRT's statement of findings and reasons either an explicit acceptance or an explicit rejection of the Shumilovs' claims of the occurrence of the specific past incidents of extortion which we have just set out. 6 On the one hand, the RRT did state in its statement of findings and reasons that, "There are … significant problems with the evidence and ['of' was meant] the Applicant and his mother…. … I consider that both the Applicant and his mother demonstrated that they are willing to tailor their evidence to what they perceive to be their advantage. Having regard to the inconsistencies and contradictions in their evidence I do not accept them as witnesses of truth." 7 We note that the Shumilovs did not seek to establish before the primary Judge any judicially-reviewable error on the part of the RRT in its reaching of the conclusion that the Shumilovs had not been witnesses of truth before it, a conclusion which would suggest that the RRT had rejected the Shumilovs' claims before it of the occurrence of the specific past incidents of extortion. 8 On the other hand, the RRT also stated in its statement of findings and reasons, "While I accept that some officers of the militia (police) and the traffic police are corrupt, … I do not accept that the Applicant was being singled out by such corrupt officers because he was a Russian…." (Although the RRT made no express reference in the passage which I have just quoted to Ms Shumilov, we take it that the RRT's conclusion extended to her as well.) 9 The statement which we have just quoted suggests that the RRT had accepted the Shumilovs' claims before it of the occurrence of the specific past incidents of extortion, although not their claims before it as to the motivation for such incidents. 10 In the end, however, it does not appear to us to matter for present purposes whether or not the RRT accepted the Shumilovs' claims before it of the occurrence of the specific past incidents of extortion. We say that because of the approach which the RRT took to the possible occurrence of future incidents of such extortion, should the Shumilovs return to Uzbekistan. 11 Before, however, discussing that approach, we should mention that, among the evidentiary material before the RRT for the purpose of its review of the delegate's decision was a cable from the Department of Foreign Affairs & Trade ("the DFAT"). That cable stated that certain information was being provided "in response to questions in reftel". This Court does not, however, have those questions before it. The portion of the cable which is relevant to the present appeal read as follows: "As elsewhere in central Asia and the CIS [that is, the Commonwealth of Independent States], the Militsia (police) in Uzbekistan is highly corrupt. This corruption is manifest equally in the Militsia's dealings with ethnic Russians and ethnic Uzbeks. Ethnic Russians may be subjected to closer and more regular attention from the Militsia, though the difference in treatment would be marginal." (We note that, in the Oxford English Dictionary (2nd ed), "marginal" is relevantly defined as meaning "of minor importance, small, having little effect". At the present day, it appears to us to carry also the ordinary meaning of "small and insignificant or unimportant".) 12 The information which we have just quoted from the DFAT cable led the RRT to express the following conclusion, part of which we have already quoted above: "… [A]s I put to the Applicant and his mother in the course of the hearing before me, the Australian Department of Foreign Affairs and Trade has advised that the militia (police) in Uzbekistan are highly corrupt but that this corruption is manifest in the militia's dealings with ethnic Russians and ethnic Uzbeks alike. The Department advised that any difference would be marginal…. … While I accept that some officers of the militia (police) and the traffic police are corrupt, and that there is a real chance that the Applicant will face demands for money from such corrupt officers if he returns to Uzbekistan now or in the reasonably foreseeable future, I do not accept that the Applicant was being singled out by such corrupt officers because he was a Russian nor that there is a real chance that he will be singled out for this reason in the future. I prefer [that is, to the Shumilovs' evidence before the RRT] the advice of the Australian Department of Foreign Affairs and Trade that there would only be marginal differences in the treatment of ethnic Russians when compared to the treatment of ethnic Uzbeks." (Although the RRT made no express reference in the passage which I have just quoted to Ms Shumilov, we take it that the RRT's conclusion extended to her as well.) 13 The relevant aspect of the Shumilovs' case before the primary Judge depended, and the entire appeal to this Court from the primary Judge's judgment as ultimately pursued depends, on one sentence in the passage from the DFAT cable which we have quoted in the next preceding paragraph of these reasons for judgment and on the use which was made of that sentence by the RRT in the passage from its statement of findings and reasons which we have quoted in the preceding paragraph of these reasons for judgment. The sentence from the DFAT cable was, "Ethnic Russians may be subject to closer and more regular attention from the Militsia [than ethnic Uzbeks], though the difference in treatment would be marginal". 14 As summarised by the primary Judge, the Shumilovs' submissions before him as to that sentence from the DFAT cable and the use which had been made of it by the RRT in its statement of findings and reasons were as follows: "[36] It is said, on behalf of the applicants, that this information clearly raised a real prospect that corrupt Uzbek police would, at least in part, select their victims by reason of their Russian ethnicity. It is said on behalf of the applicants that, notwithstanding this information, the Tribunal appears to have assumed that the Convention did not apply, merely because the more severe treatment of Russians was 'marginal'. This submission is made by reference to a passage in the following reasons of the Tribunal: 'I prefer the advice of the Australian Department of Foreign Affairs and Trade that there would only be marginal differences in the treatment of ethnic Russians when compared with the treatment of ethnic Uzbeks.' [37] It is said that this reasoning, and the failure to resort to what was described, in argument, as a 'principle' explained by the Full Court in Rajaratnam v Minister for Immigration and Multicultural Affairs ([2000] FCA 1111 at par 46) [see also (2000) 62 ALD 73 at 85-86, [46]], demonstrates an error of law within the meaning of s 476(1)(e)." 15 The primary Judge's response to those submissions was as follows: "[38] In Rajaratnam, Finn and Dowsett JJ made some general observations, which I will not attempt to summarise here, but which addressed the question whether an extorted party may have been chosen, or not chosen, specifically as a target of extortion for a Convention reason. [39] … [T]he observations are, with respect, helpful, but are necessarily expressed in general terms. … [I]n any individual case, it is essential to concentrate in the first instance on the particular context. … I am of the view that, in order to understand the Tribunal's approach, its reasons must be read as a whole. When those reasons, in all their detail, are considered as a whole, I can discern no error of law in the respect suggested. The question rather is, in my view, truly one of fact. In the ultimate analysis, the Tribunal has accepted that ethnic Russians may be subjected to closer and more regular attention from the militia, but has concluded that the difference in treatment would be 'marginal'. That being so, I am not persuaded that any error of law in this connection has been demonstrated." 16 On the present appeal, the Shumilovs have made submissions which, according to them, are similar in substance to those which they made before the primary Judge. 17 As we understood those submissions, they were to the effect that it should be inferred from the RRT's statement of findings and reasons that its decision had involved at least one of two errors of law: erroneously proceeding on the basis that persecution could not be for a Convention reason within the meaning of the Refugees Convention unless a Convention reason was the sole, or at least the dominant, reason for that persecution; alternatively, erroneously proceeding on the basis that the conduct of selecting a person for a Convention reason, followed by non-discriminatory persecution of that person, did not, when viewed in its totality, amount to persecution of that person for a Convention reason. (We do not stay to decide the extent to which either of those two alleged errors of law may be correlated with the sole ground of appeal which the Shumilovs ultimately pursued before this Court, as expressed in their notice of appeal.) 18 Fundamental to the Shumilovs' submissions regarding each of those two alleged errors of law was the reading which they gave to the sentence from the DFAT cable: "Ethnic Russians may be subject to closer and more regular attention from the Militsia [than ethnic Uzbeks], though the difference in treatment would be marginal". According to the Shumilovs, properly read, that sentence contained an assertion that ethnic Russians would be subject to closer and more regular attention from the Militsia than ethnic Uzbeks or, at least, contained an assertion that there existed a real chance that they would be. Further, according to the Shumilovs, properly read, that sentence also contained an assertion that, once ethnic Russians had been subjected to such closer and more regular attention, they would receive treatment which would be worse than that which ethnic Uzbeks would receive. 19 We do not accept that the reading of the sentence which was fundamental to the Shumilovs' submissions of error of law by the RRT is the correct reading. Alternatively, even if that reading is the correct one, it would at least be reasonably open for someone to read the sentence as having asserted, not that ethnic Russians will be subject to closer and more regular attention from the Militsia than ethnic Uzbeks or that there exists a real chance that they will be, but merely that there exists some chance that they will be, the probability of that occurring being unspecified. Further, if ethnic Russians should be subject to closer and more regular attention from the Militsia than ethnic Uzbeks, then any difference in treatment would be small and insignificant or unimportant. (We note that, during the hearing of their appeal, the Shumilovs conceded that the reading of the crucial sentence in the fashion which we have just described was "theoretically open".) 20 To put the matter in other words, the crucial sentence might reasonably be read as having asserted in part merely that the subjecting of ethnic Russians to closer and more regular attention from the Militsia than ethnic Uzbeks may perhaps occur, the author of the sentence not being in possession of any information leading the author to consider that occurrence to be impossible. 21 Once it be accepted that it is reasonably open to read the crucial sentence in the fashion which we have described above, we are not prepared to infer, as the Shumilovs have submitted, that the RRT, in affirming the delegate's decision, committed one or other of the two errors of law which they have identified. Instead, we infer that the RRT read the crucial sentence in the fashion which we have described above and infer further that it was that reading which led the RRT to express the conclusion that it did not accept that there was a real chance that, if he returned to Uzbekistan, Mr Shumilov would be singled out by corrupt police and traffic police officers because he was a Russian. 22 In the circumstances, the appeal should be dismissed with costs. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Branson, Mansfield & Katz.