1500413 (Refugee)

[2016] AATA 4008

1500413 (Refugee) [2016] AATA 4008 (17 June 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1500413

COUNTRY OF REFERENCE:                  Russian Federation

MEMBER:Belinda Mericourt

DATE:17 June 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 17 June 2016 at 3:48pm

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Russian Federation, applied for the visa [in] April 2014 and the delegate refused to grant the visa [in] December 2014.

3. The applicant appeared before the Tribunal on 20 May 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s [daughter]. The Tribunal hearing was conducted with the assistance of an interpreter in the Russian and English languages.

   RELEVANT LAW

4. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

5. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied 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 (together, the Refugees Convention, or the Convention).

6. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly 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.

7. The High Court has considered the Convention definition of refugee in a number of cases, notably Chan Yee Kin v MIEA (1989) 169 CLR 379, Applicant A v MIEA (1997) 190 CLR 225, MIEA v Guo (1997) 191 CLR 559, Chen Shi Hai v MIMA (2000) 201 CLR 293, MIMA v Haji Ibrahim (2000) 204 CLR 1, MIMA v Khawar (2002) 210 CLR 1, MIMA v Respondents S152/2003 (2004) 222 CLR 1, Applicant S v MIMA (2004) 217 CLR 387, Appellant S395/2002 v MIMA (2003) 216 CLR 473, SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51.

8. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the regulations to a particular person.

9. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

10. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

11. 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.

12. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - 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. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

13. Fourth, an 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 being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

14. In addition, an 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 or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

15. Whether an applicant is a person in respect of whom Australia has protection obligations 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.

16. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

    Complementary protection criterion

17. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

18. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

19. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

20. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    BACKGROUND

21. The applicant was born in [year] in [the] Russian Federation and is a citizen of Russia. She stated that she is ethnically Russian and her religion is Orthodox Christian. She worked as [various occupations] until her retirement in [year]. She was widowed in 1990. She has one daughter who resides in Australia.

22. The applicant was granted a [temporary] visa (subclass [number]) [in] November 2012 and entered Australia [in] April 2013. She had never previously travelled outside Russia.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Requirement that the decision-maker be ‘satisfied’

23. 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. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

    Claims in the applicant’s written application for protection

24. In her written statement of claims dated the applicant stated that she left Russia because she desperately missed her only daughter who lives in Australia. She stated  -

    ·“I did not feel safe in Russia being a single elderly woman without any male protection or assistance from the authorities. I have nobody left in Russia to care and defend me and such need is urgent and desperate. I received a small pension and was still in good health to do my little food shopping and look after myself. After the death of my darling great-grandson and then my beloved grandson (my daughter’s son) my heart was broken and I am not the same. I feel like I have nothing left to live for but my only daughter, who suffers unimaginably. So I left Russia to give my daughter the support she so desperately and painfully needed. But I also had other reasons. I lived in my own flat in Russia and some people started asking if I would consider making a will and make them beneficiaries in exchange for them looking after me. I refused as I was able to look after myself but they persisted. I asked a local policeman to look into it but he said that people are free to make such offers and it is my choice to accept or decline. After my elderly neighbour was offered the same, declined many times and then died in very suspicious circumstances I got scared. Then I heard that several other people died after having declined similar offers. I again asked the police to look into it as I was still getting calls and the tone of them was becoming impatient and threatening. Police declined to accept my application saying that when something happens to me I should lodge a complaint, but so far it is only my words and being an elderly woman I am likely to exaggerate the danger and misinterpreted things.

    ·Once I had a visit from people who said that they are from social services in regards to matters with my pension. I opened the door and they came in. [There were two people]. I offered them tea and prepared to talk when they said that there are so many cases when elderly lonely people have died being alone and without support. I should consider making a will and by doing it I will insure myself against such horrible death. I asked if they are threatening me. They said no, we’re just warning you. I asked if they are really from social services and they said; well, it is kind of social services, we do what the government cannot do - look after people like you. I said that my beneficiary is my daughter and I have nothing to say. They stood up and when walking to the exit, pushed me and I fell. He said see, bad things happen all the time. You do need us. If you do not agree we will feel sorry for you. This is your choice. I rang the police in tears because it was a physical attack - an actual threat. They came over and after I told them and showed my bruising they said that I cannot provide them with detailed description of the visitors. They advised me not to open the door to people who I do not know. I said that the visitors threatened me and said that I might fall down on the street, in the shop, not necessarily in my own flat. Police made faces like I was out of my mind. They looked bored and irritated. They left and I cried. I worked hard all my life, the government always forcibly deducted money from my pension and taxed me and now when I need their help they cannot help, saying that they have murders, rapes and organised crimes to protect people from and here I am, bored and just wasting their time with my imagination. After losing my grandson and great-grandson, I was emotionally shattered already. And this only added to my anguish and fear and desperation. I rang my daughter and she said mum you are coming here and stay with me.

    ·I fear that if I go back to Russia I will be killed for my flat as so many elderly lonely people in Russia. It does not take much to be killed for in Russia. Even if it does not happen by some miracle - I will always live in animal fear. Is it a dignified life in my age?

    ·I think thugs will kill me for my flat. The authorities who do not pay my plight any attention and by being indifferent and passive making it possible for me to be killed. I think this will happen because I am a single, defenceless and elderly woman. The government has no use for me anymore. They do not care about people like me.”

25. The applicant did not attend her scheduled interview with the delegate [in] December 2014 and the delegate made her decision based on the applicant’s written application for protection.

26. In the decision record dated [December] 2014, the delegate stated that she was unable to find that the applicant’s written claims detail a risk of harm, and/or fear of harm that is of such magnitude that the applicant requires protection under either the Refugees Convention or the complementary protection provisions of the Migration Act.

    Claims made at the Tribunal hearing on 20 May 2016

27. Prior to the hearing, the applicant provided the Tribunal with a medical certificate from [a doctor], dated [April] 2016 stating that the applicant has medical [conditions]. He also provided a letter from [another doctor], addressed to her GP dated [April] 2015, stating that she is not safe to travel back to Russia at the moment.

28. The applicant and her daughter both gave consistent evidence to the Tribunal which is summarised as follows;

29. The applicant told the Tribunal that before she departed Russia she had lived on her own in a [apartment] which she owns. She had worked all her life since she was 15 years old in a [workplace], including through the war, and she receives a good pension (a war veteran’s pension) from the Government. Putin even sends her congratulatory telegrams on Victory Day and the like.

30. The applicant has only one child – her daughter who lives in Australia. Her daughter’s [son] lived near her and would ring her every day to check on her and visit frequently. He died very suddenly [in his 30’s] [in] 2011, probably from a heart attack and since then she has been ‘on her own’. His own son had died from an illness prior to that.

31. The applicant said that she had [a] sister aged [age] and [another] sister aged [age] living in the same town. [One] sister has had a [health issue]. They both have families and the applicant has many nephews and nieces. [One] sister lives with her [children] who provide her with 24 hour care. The next generation of nephews and nieces all live in different cities. [The other] sister is cared for by her family also but her [child] has had cancer and the other [child] lives in another city. The applicant’s daughter stated that she does not believe any of her mother’s extended family members are able to provide her with the care and protection that she requires.

32. The applicant was very lonely after her grandson died and wanted to be with her daughter. Her daughter used to visit her in Russia from time to time and last came to visit her in Russia in 2012. On that visit they made arrangements to get all the paperwork for the [temporary] visa.

33. The applicant said that about six months after her grandson died two people visited her saying they were from the Department of Social Security. They said elderly people like her couldn’t look after themselves and they would agree to care for her in exchange for registering one of them on the title deeds to her apartment. She was not willing to do so and then they told her she “would be the worse for not agreeing” to that arrangement. They called her on the phone after their visit making similar threats. They did not physically harm her.

34. The applicant phoned the Department of Social Security who said that they had not sent anyone to visit her. She then went to the police station (which was only two blocks away) to lodge a complaint but they would not assist her as she could not identify them and told her that her problem was trivial (the Tribunal’s words) as they had much bigger problems to deal with. She went to the police station on her own.

35. The applicant had a good relationship with her neighbour who checked on her from time to time after her grandson passed away. This neighbour told her that three people came to her apartment when she was absent. Other than that no people came to her apartment again since the first visit in late 2011 and her departure in April 2013.

1. The Tribunal asked the applicant about the delay between being granted her [temporary] visa in November 2012 and her departure in April 2013 but she appeared to be unaware of the delay and just said she came after she was granted the visa. The applicant’s daughter told the Tribunal that as the [temporary] visa had been granted in late November it was -40˚C in Russia and she did not want to bring her mother here when it was 30˚C in Australia. Even when she left in April the snow was almost chest high.

2. Both the applicant and her daughter stated that at the time she applied for the [temporary] visa her intention was to visit and her daughter bought her a return ticket. The applicant’s daughter said she “did not know how things would go”. Then her mother developed [health] problems in about December 2013 and they went to a doctor and then a [specialist] who diagnosed the problem and prescribed medications. Although her health has improved since taking the medication she is still at risk and cannot travel. The next specialist’s appointments are in June and July this year.

3. The applicant said that she wanted to stay in Australia with her daughter as she could no longer manage on her own. Her health and mobility have deteriorated and she is becoming forgetful.  She can no longer do her shopping or get to medical appointments and she would be alone and vulnerable if she were to return to Russia. She did not fear anything in particular although she found the experience described above as very unpleasant and was concerned that the same sort of thing may happen again.

4. The applicant’s daughter said that there is a problem with vulnerable elderly people “just disappearing”. A lot of elderly people in Russia end up in the street without any documents or possessions. The Tribunal put to her that her mother should be able to seek protection from the authorities. The applicant’s daughter said that when her mother tried to seek protection from the police they didn’t take a statement from her or file an incident report because she could not identify the people who threatened her. She thought it would not be possible for her mother to receive protection from the authorities.

5. The Tribunal put to her that, having had this experience, she could refuse to open her door to strangers (she had said she had a peephole in the door). The applicant’s daughter said that her mother used to get her pension through the post office who would sometimes deliver it to her. These people were strangers and she would have to open the door to them to receive her pension.

6. The Tribunal put its concerns to the applicant and her daughter about whether the applicant would meet the criteria for a protection visa and about the time between being granted the [temporary] visa and coming to Australia and then only lodging her application for a protection visa after she had been in Australia for almost one year and her [temporary] visa was about to cease.

7. The Tribunal asked the applicant’s daughter whether she had sought advice about different visa options for her mother. She said that she had talked to her priest and to other people from the Russian diaspora. They looked at the Department’s website using Google translate. She thought that her mother should receive a “humanitarian” visa.

   FINDINGS AND REASONS

   Nationality

8. On the basis of the applicant’s passport provided to the Department, the Tribunal finds that the applicant is a citizen of the Russian Federation. There is nothing in the evidence before the Tribunal to suggest that the applicant has a right to enter and reside in any country other than the Russian Federation. Therefore the Tribunal finds that the applicant is not excluded from Australia’s protection by subsection 36(3) of the Act.  As the Tribunal has found that the applicant is a national of the Russian Federation, the Tribunal also finds that the Russian Federation.  is the applicant’s “receiving country” for the purposes of s.36(2)(aa).

   Claims of being at risk of serious or significant harm from thugs as she is an elderly woman living on her own

9. The Tribunal accepts that the applicant feels there is no one left in Russia to care for her or protect her and that she feels particularly vulnerable given her age and frailty. It was evident to the Tribunal that she had had a close relationship to her grandson and was particularly devastated by his untimely death. The Tribunal accepts the applicant’s evidence that members of her extended family are unable to provide the care she feels she needs due to their own commitments which is why she wishes to live with her own daughter.

10. The Tribunal also accepts that the applicant was approached on one occasion some time in 2011 about six months after her grandson’s death, by two people who threatened her emotionally by stating that ‘it would be the worse for her’ if she didn’t register them on the title deeds to her apartment as she was a vulnerable elderly woman living on her own.

11. The Tribunal accepts the applicant’s evidence that she tried to report the incident to the police but was ignored because she could not identify the people who approached her.

12. The Tribunal accepts the applicant’s evidence that her neighbour keeps an eye on her and saw three people (through her own peephole) call at the applicant’s apartment in her absence. However, aside from the neighbour’s sighting there have been no other incidents or visitors.

13. Extortion and threats of this nature are crimes in Russia and, at least in theory, the applicant should be able to seek protection from the authorities. The Tribunal understands the applicant’s distress and frustration with the police attitude that her problem was too trivial for them to deal with. However, there is no supporting evidence and the Tribunal has no independent country information before it which indicates that the applicant is unable to avail herself of the protection of the Russian authorities, particularly if she had the assistance of her neighbour and/or one of her relatives who reside in the same city.

14. The US Department of State Human Rights Report on Russia 2015 referred to enforced disappearances as follows;

    Enforced disappearances for both political and financial reasons continued in the North Caucasus. According to the 2015 report of the UN Working Group on Enforced or Involuntary Disappearances, there were 476 outstanding cases of enforced or involuntary disappearances in the country.[1]

    [1] US Department of State Russia 2015 Human Rights Report p.4

15. There was no independent country information that indicates that disappearance of elderly people living alone is a particular problem in Russia or that any of the enforced or involuntary disappearances relate to elderly people or residents of the area in which the applicant lives. As the applicant’s only asset is her [apartment] in [Russia] the Tribunal finds that there is only a very remote risk that she would be subject to enforced disappearance for financial reasons.

16. Section 91R(2) provides that the following are instances of ‘serious harm’: (a) a threat to the person’s life or liberty; (b) significant physical harassment of the person; (c) significant physical ill-treatment of the person; (d) significant economic hardship that threatens the person’s capacity to subsist; (e) denial of access to basic services, where the denial threatens the person’s capacity to subsist; (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

17. ‘Significant harm’ is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

18. The Tribunal had regard to the applicant and her daughter’s evidence that they applied for the [temporary] visa in 2012 after the incident described above with the intention that the applicant visit her daughter for 12 months to see how things went. The Tribunal also had regard to the fact that the applicant did not apply for protection until [April] 2014, a week before her [temporary] visa ceased and a year after her arrival in Australia.

19. The Tribunal accepts the applicant’s daughter’s evidence that the delay between grant of the [temporary] visa and the applicant’s departure was due to the extreme weather differences at the time. The Tribunal also accepts the applicant’s evidence and that of her daughter that the applicant’s intention at the time of application was to visit Australia and “see how things went”. She developed [health] problems at the end of her visa period and clearly the family decided at that point that she would be better off if she remained in Australia. They sought advice from various members of the Russian diaspora in Australia but did not seek legal advice and assumed that the applicant’s circumstances fell into the category of “humanitarian” visa.

20. The Tribunal understands why the applicant, an elderly frail and vulnerable woman, would prefer to stay with her daughter than return to Russia where she will not have the same level of support and care. However, taking the above evidence into consideration both individually and cumulatively the Tribunal is not satisfied that there is a real chance or a real risk that the applicant will face significant or serious harm (having regard to the definitions above) now or in the foreseeable future if she returns to Russia.

    CONCLUSION

21. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

22. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

23. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

24. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    Belinda Mericourt
    Member