1504048 (Refugee)

1504048 (Refugee) [2017] AATA 369 (21 February 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1504048
COUNTRY OF REFERENCE:                  Russian Federation
MEMBER:James Silva
DATE:21 February 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 21 February 2017 at 4:26pm
CATCHWORDS
Refugee – Protection visa – Russian Federation – Ethnicity – Chechen – Discrimination – Disappearance of friend - Murder attempts – Damage to property and apartment – Police violence – Credibility – Evidence vague and had gaps – No attempt to relocate
LEGISLATION
Migration Act 1958, ss 5(1), 36(2)(a), (aa), (b), (c), 36(2B), 6591R, 91R(1), 91R(1)(b), 91R(1)(c), 91R(2), 499
Migration Regulations 1994, Schedule 2
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

The applicants are a husband and wife in their [age] from Russia.
The applicants arrived in Australia [in] November 2013, as the holders of [temporary] visas.
[In] November 2013, they jointly lodged applications for Protection visas. They attended an interview with the delegate of the Minister for Immigration [in] December 2014.
[In] March 2015, the delegate refused the applications pursuant to s.65 of the Migration Act. This is an application for review of that decision.
The issue in this case is whether either applicant meets the refugee criterion, and if not, whether he or she is entitled to complementary protection. The relevant law is in Attachment A.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS
Claims
The applicants are a married couple, a [age] man from Mari El Republic in Russia, and a [age] woman from Western Siberia.
The first-named applicant (‘the applicant’) claims to be of Chechen ethnicity, and perceived as such. He claims to have suffered persistent discrimination as a Chechen.
The applicant claims that in April 2013, he attended his first political protest together with a Chechen friend. This led to a series of events that eventually caused both applicants to flee Russia for their safety:
·     At the protest, the police dispersed the crowd. Some officers found the applicant and his friend nearby, and racially abused and assaulted them. The applicant lost consciousness. His friend disappeared and has not been heard of since.
·     The applicant made enquiries about his missing friend. In early May 2013, the police summonsed him to an interrogation, during which they seriously injured him and tried to make him sign a confession that he had killed his friend.
·     The applicants started to receive death threats, and demands that they leave Russia.
·     In early July 2013, the applicant wife was assaulted. During this period, the applicant appealed to the prosecutor’s office, and repeatedly asked for protection. In August 2013, their apartment was ransacked, and the applicant’s dog was killed. The couple moved in with friends, for their safety.
·     In late September 2013, some unknown men set the applicant’s car on fire and tried to kill him. He narrowly escaped. The couple stayed in another place, before leaving for Australia.
The applicant claims to fear that the Russian police, and their associates, will target and harm him, or perhaps kill him, if he returns to Russia. Their motivation is his Chechen ethnicity.
The applicant wife also claims to fear persecution or significant harm, based on her membership of the applicant’s family unit, and in particular after the assault she suffered in July 2013.
Background
As noted above, the applicant is a [age] man from Yoshkar-Ola, the capital of Mari El Republic, Russia. He claims to be an ethnic Chechen.
The applicant claims that he had previously used his father’s surname, [name], but he adopted his wife’s surname [name], after marrying. His father, originally from Sverdlovsk, died in April 2012. His mother is currently living in Yoshkar-Ola.
The applicant studied in Yoshkar-Ola until [year], completing a course in ‘[name]’ at [a] University in [year]. From April 2009, he worked as a [occupation] in a [certain] business.
The applicant holds a Russian passport issued in [month] 2013, valid for ten years. He claims to have held a previous passport that the authorities destroyed. He made various tourist trips from 2005 to 2008, to [various countries].
The applicants married in June 2011.
The second-named applicant (‘the applicant wife’) is a [age] woman from [name], a town in western Siberia, some 2,400 kilometres to the east of Yoshkar-Ola. She studied in Yoshkar-Ola. She claims to be a Christian, of Jewish ethnicity. Her father was born in [location], the centre of the Jewish Autonomous Oblast in eastern Russia, and her mother is from Yoshkar-Ola.
The applicant wife studied in [town], and from 2006, undertook a [certain] course at university in Yoshkar-Ola. She claims to have worked for the same employer as the applicant, as a [occupation].
Evidence
The evidence before the Tribunal includes the following relevant material:-
§The applicants’ protection visa application forms lodged [in] November 2013. Both made applications based on their own claims for protection. They included handwritten statements setting out their claims. They also provided photocopies of their Russian passports, issued [in] 2013.
§The applicant attached a photocopy of a Russian language text, which includes the English words ‘Amnesty International 2012’. (This also appears on the Tribunal file.) The applicant confirmed that this is the text of an Amnesty International report on the Russian Federation, and that it contained general country information.
§The applicants attended a protection visa interview (‘Department interview’) [in] December 2014. The Tribunal has listened to the recording of the hearing, which is on the Department file. The applicants lodged a complaint about the delegate’s conduct at the interview (her manner), but did not dispute any of the information that they provided or that was reflected in the decision record.
§The protection visa decision record (‘delegate’s decision record’) [in] March 2015. The applicants sent a copy of the decision record to the Tribunal [in] November 2016.
§The application for review [in] March 2015.
§The applicants provided further documents to the Tribunal:
-Copy of the applicant’s birth certificate, in Russian with English translation, which records his birth name as [name], and his father’s ‘nationality’ (ethnicity) as Chechen (named [name]).
-Copy of the applicants’ marriage certificate indicating that the applicant husband took his wife’s family name, ‘[name]’, at the time of marriage
-Statement [in] April 2015 in which a medical imaging company states that an x-ray of the applicant’s [bone] reveals a deformity following a fracture that has healed.
§The applicants sent to the Tribunal a report from [Doctor A], Clinical Psychologist, [name] Health Centre, dated [in] January 2014. Relevantly, [Doctor A] notes:
-The applicant was assessed to have ‘mild levels of depression and anxiety’ and ‘mild to normal level of stress’; and to have no symptoms of Posttraumatic Stress Disorder
-The report states that the applicant spoke of being exposed to threats of death/serious injury, and other ‘traumatic events’. It details the applicant’s background and repeats aspects of his protection claims (as related by him to the psychologist).
-The report has a section ‘Cultural Consideration’ which sets out a range of country information about Chechens and the Mari El Republic.
-The psychologist opines that the applicant has ‘some face [sic] features of people from the North Caucasus of Russia’. She goes on to observe that ‘[the applicant], his father and grandfather were unwelcome in the Mari El Republic’; and that ‘Many Chechens like [the applicant] preferred to live under different surnames and denied their nationality’.
§The applicants presented their NSW photo cards at the hearing, but did not bring their Russian passports.
§The first-named applicant also presented a letter of employment, and x-rays of his [bone] (to demonstrate that it had been injured).
The Tribunal drew on a range of country information, including various sources mentioned in the delegate’s decision record. It referred to the following two reports which address the situation of Chechens in Russia, in particular:
§ Danish Immigration Service: Security and human rights in Chechnya and the situation of Chechens in the Russian Federation – residence registration, racism and false accusations, Copenhagen, January 2015
§ Danish Immigration Service: Chechens in the Russian Federation – residence registration, racially motivated violence and fabricated criminal cases, August 2012
§ Danish Immigration Service: Chechens in the Russian Federation, Copenhagen, October 2011
§ As noted above, the Tribunal has also had regard to general country information sources, including the English language text of the 2012 Amnesty International Report.
The applicants appeared before the Tribunal to give evidence and present arguments, on 18 January 2017. The hearing was conducted with the assistance of an accredited interpreter in the Russian and English languages. The applicants are unrepresented in this matter.
Both applicants gave evidence at the hearing. The Tribunal took separate evidence from the applicant husband about the April 2013 and its immediate aftermath, and then invited the applicant wife to give her account. The Tribunal put to the applicant certain information from the applicant wife’s evidence, pursuant to the procedure in s.424AA of the Act, for his comment or response. He elected to provide his comments/response orally, on the spot. For most of the hearing, both applicants were present at the same time. The Tribunal noted that they both have their own claims for protection, and offered them the opportunity to raise any matters in private. They did not take up this offer.
Country of Reference
The applicants claim to be nationals of Russia. They presented their Russian passports to the Department, although they did not bring them to the Tribunal hearing. They have a thorough knowledge of Russia and speak that language. On the available evidence, and in the absence of any contrary information, the Tribunal finds that the applicants are nationals of Russia. Russia is therefore the country of reference for the purpose of assessing their protection claims, and the receiving country when assessing their claims against the complementary protection grounds.
Assessment of claims: credibility
The Tribunal has taken into account the AAT’s Migration and Refugee Division Guidelines on the Assessment of Credibility both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole.
The Tribunal has had regard to the clinical consultation report from [Dr A], a clinical psychologist from [a] Health Centre, written [in] January 2014, and based on four consultations with the applicant. It notes that the clinical psychologist conducted these sessions in Russian, and evidently in a non-Tribunal setting in which the applicant may have felt more relaxed. Based on a self-report assessment and the consultations, [Dr A] concluded that the applicant has ‘negative alterations and mood associated with traumatic events’, but that these do not meet the criteria for Posttraumatic Stress Disorder. The Tribunal finds nothing in this report to suggest that the applicant was unable to present at the hearing.
The Tribunal has broad concerns about the credibility of the applicants’ claims. In several instances, it found that they described significant incidents, but struggled to provide meaningful detail, such as peripheral observations or an account of the consequences. They impressed on the Tribunal that a person subject to such targeting (as they claimed they were) does not necessarily act rationally or note all details. The applicant wife also stressed that it had been difficult for the couple to upend their lives in Russia, and start afresh in a new country. The Tribunal takes these factors into account, but it is of the view that they do not adequately resolve its concerns about their account of their claimed experiences in Russia and their conduct as a whole. The assessment below addresses these issues in detail.
Chechen identity and discrimination
The applicant claims to be Chechen, and readily identifiable as such by the Russian majority (including the police and other authorities). This is central to his protection claims, as the applicant contends that the police racially abused and assaulted them in April 2013 a Chechens (his friend [Mr A] had a more typical Chechen appearance), and the applicant’s ethnicity has motivated them to continue pursuing him, ultimately forcing the applicants to leave Russia.
The applicant has made this claim consistently. However, he has provided somewhat weak and inconclusive supporting evidence. For the reasons set out below, the Tribunal finds that the applicant has some Chechen ancestry, but it finds that he has exaggerated this aspect of his identity and that he is not ordinarily perceived as being Chechen.
The applicant relies mainly on his family history and his physical appearance to support his claimed ethnicity, as a Chechen.
Family history: The applicant told the Tribunal he understands that his grandfather was a Chechen named [name] who was born in Chechnya and deported to Sverdlovsk in the 1940s by Stalin. Country information lends some support to that scenario. A 2011 Danish report notes: ‘The Chechno-Ingush Autonomous Soviet Socialist Republic was dissolved in 1994 and both Chechens and Ingush were deported en masse to Central Asia and Siberia’, where they remained until 1957.[1] Although Sverdlovsk is in the Urals Federal District (and not Central Asia or Siberia), and the Tribunal has been unable to find any reference to an established Chechen community in that city, the applicant’s account of his grandfather’s departure from Chechnya in the 1940s is generally consistent with reports that Chechens dispersed through various parts of the then Soviet Union.
[1] See Danish Immigration Service, October 2011: Chechens in the Russian Federation,
The applicant provided a copy of his birth certificate, where his name was registered as [name], and his father’s ethnicity was stated as Chechen. The applicant initially suggested that he (the applicant) changed his family name to conceal his Chechen origins. However, at the hearing, both applicants confirmed that the name [name] is a Russian (not Chechen) name. The applicant said that it was his grandfather had changed the surname.
The Tribunal found it difficult to obtain further background information from the applicant. He did not have details of his grandfather’s original name, place of origin or clan. The applicant explained that his grandfather and his father tried to conceal their origins, for their own wellbeing or advancement. His grandfather had worked for the Communist Party; the applicant thought he had held the position of [official] of the City Party Committee. Similarly, his father had been [official] of a maximum security [facility].
Physical appearance: The applicant claimed that, even though his grandfather and father had Russian names and downplayed their Chechen ethnicity, he (the applicant) was recognisable as a Chechen due to his physical appearance. He commented that although this might not be obvious on the street, Russians could tell that he has non-Russian facial features, but rather those of a Chechen. In school, for instance, he was called ‘egg-head’.
The Tribunal notes country information referred to in the delegate’s decision and other sources, indicating that Russians often stereotype Chechens as being ‘black’.[2] As a result, the average Russian might not be able to reliably identify Chechens on the basis of physical appearance alone, although those familiar with Chechnya and its people could do so:
A person of Chechen origin explained that in general Russians would not be able to see whether a person is an ethnic Chechen or not, because they only know the stereotypes of Chechens being “blacks”. That is why people with dark skin are seen as the stereotype of a Chechen. It was added that Russian soldiers who fought in Chechnya do recognise Chechens immediately.
[2] See Danish Immigration Service,
The letter from [Dr A] also notes: ‘[The applicant] reported being of Chechen nationality. Some face features of people form the North Caucasus of Russia were observed.’ She does not provide any details of what these features were, or the basis for her observation.
There are few other indicators of the applicant’s Chechen ancestry. He does not speak Chechen. He thought that his grandfather was from near Grozny, but had no further details of his place of origin, the family’s clan or other details. He has not visited Chechnya, and appears to have no other connections with the place.
In the Tribunal’s view, a consistent picture emerges of the applicant being of Chechen ancestry on his father’s side and Russian ancestry on his mother’s. It appears that his grandfather adopted a Russian name, occupied a trusted position in the Communist Party, and moved to Sverdlovsk where there is no sizeable Chechen community. This strongly suggests that the applicant’s family has – quite likely due to racial prejudice, and/or for economic and social advantage – largely integrated into the Russian community.
The issue arises whether the applicant, due to his physical features or other characteristics, is nonetheless perceived to be Chechen or non-Russian, and consequently at risk of discrimination.
Discrimination as a Chechen
The applicant claimed that he was subject to persistent discrimination at school, particularly due to his non-Russian facial features. Although he originally suggested that he had adopted his wife’s family name to conceal his Chechen origins, he agreed with the Tribunal that he already had a Russian family name. Instead, he explained, he decided to take on his wife’s family name on marriage as a response to the constant bullying he had experienced, in the hope of being able to make a new start in life.
At hearing, the applicant said that he did not finish his schooling, due to the bullying. He appeared to state that he had planned to continue school to Year 11, but had achieved only a ‘satisfactory’ grade and therefore opted instead to attend a vocational training college. He commented that a majority of the students at his college were Muslim Tartars, and they teased the applicant about having abandoned his Muslim roots. It appears from the applicant’s account that the bullying centred on religion (his atheism).
The Tribunal had difficulty eliciting from the applicant any other examples of whether – if it is true that Russians perceive him to be a Chechen – he faced any consequent discrimination. On the contrary, he claims to have achieved good results when he completed his specialist degree at [a] University. He then worked as a [occupation] for [business], which included direct work with customers. The applicant said that he held this position until October 2013, when he obtained leave for his travel to Australia.

The Tribunal has found above that the applicant has both Chechen and Russian ancestry, although his family (on his father’s side) is well-integrated. The Tribunal considers it possible that at least some people recognise the applicant as having some non-Russian ancestry, but it is not satisfied that they know or assume that he is part-Chechen, unless they have some other contextual information. Significantly, the Tribunal accepts that the applicant may have experienced some discrimination and teasing at school, or attract some queries elsewhere. However, it is not satisfied that he has experienced discrimination amounting to persecution or significant harm.
April 2013: Police assault and disappearance of friend
The protest and the assault: The applicant claimed that [in] April 2013, he and a Chechen friend named [Mr A] attended a protest outside [a] building in Yoshkar-Ola. Several hundred people had gathered to protest against Putin. The police arrived by bus and started to attack the protestors, to disperse the crowd. The applicant and [Mr A] ran into the yard of a nearby house. Several police officers found them, and racially abused them as Chechens. They assaulted the applicant and [Mr A]. The applicant lost consciousness, and when he came to, was alone in the yard. He has never seen [Mr A] since.
The applicant gave further details of the protest and the encounter with the police, at the Department interview and the hearing.
§ The protest took place at a central location, at around 10 am. Various groups had come together to protest government policy and human rights practices. These included some people from the Caucasus, gays and pensioners. There were a few hundred people, plus some bystanders.
§ The applicant said that his friend, [Mr A], also a Chechen, suggested that they go, to show support for the rights of Chechens and other Caucasus peoples. It was the first time the applicant had attended a protest. In response to the Tribunal’s questions, he said that he did not agree with Putin’s policies, but had simply not mustered the courage earlier to engage in political activity. He recalled that the protest took place on the weekend; it was a warm, sunny day, just after the snow had melted.
§ The applicant said the police arrived by bus, carrying batons. They attacked the crowd, and people scattered. The applicant and [Mr A] ran into the yard of a nearby house.
§ [Number] police officers found the applicant and [Mr A]. They asked for ID papers, which the applicant was unable to produce. One of the officers held him against their vehicle. The applicant remembers seeing the other two beat [Mr A], who was on the ground. The applicant shouted, and one of the police officers hit him on the back of the head. He then passed out. He estimates that he would have been unconscious for about 15 minutes.
§ The applicant said that, when he came to, he had to orient himself. He noticed some people in the doorways who might have witnessed the incident. They said that they did not see anything (and did not appear interested).
§ The applicant’s face was bruised, and his nose bleeding. His head was spinning and he was shaking. He managed to catch up a taxi, and was home by about 11:30 am or 12 noon.
§ On arriving home, he cleaned himself up and lay down on the sofa. The applicant wife was not home; the applicant thought she returned home around 3 pm. The applicant said that they had dinner together that night, but could not give further insight as to whether she helped treat his injuries, prepared food for him, or whether there was any other conversation or other response to his condition (such as making telephone calls).
§ In response to the Tribunal’s questions, the applicant said that he had some nausea and dizziness after this, but did not seek any medical check-ups, as the consequences ‘were not so horrible’.
The applicant wife, in her oral evidence, said that she could not recall much of the day or the applicant’s condition on her return home. She thought that the applicant went to the protest on the weekend. She was not sure how the weather had been on that day; whether she had gone for a walk or initially stayed home when he went to the protest; when she returned home to see the applicant; or how he appeared after the beating, except that he looked ‘scared’.
The Tribunal put to the applicant, pursuant to the procedure in s.424AA of the Act, that the applicant wife’s evidence had been extremely vague, even though the events on this day were significant - it being the applicant’s first ever protest, and the consequences were dramatic. The applicants opted to comment/respond to the information on the spot. The applicant said that, despite the beating, his appearance was not like from a ‘horror movie’, otherwise he would not have been able to catch a taxi. He implied that his wife would not necessarily have noticed his appearance on her return home. The applicant wife echoed these sentiments, suggesting that there had been little reason for her to remember what happened on that day. She did not care for politics. Also, she thought that the applicant would not have wanted to alarm her when she got home, with an account of the events. His bruises became apparent only in the following days.
The Tribunal considers that the applicant that the applicant was able to provide a reasonably detailed and consistent account of the basic elements of his claims regarding the protest [in] April 2013 and the police assault. However, despite the significance of the events on that day – it being the applicant’s first political protest, and his first encounter with the police – the applicants have struggled to provide other meaningful information that goes beyond the basic elements of the claim - such as the applicant wife’s activities, the interaction between the couple on her return home, and the applicant’s health. This causes the Tribunal some doubts, which it returns to later.
Search for [Mr A]: The applicant claims that he and [Mr A]’s wife lodged a missing person report for [Mr A], and this appears to have been the trigger for the subsequent police pursuit of him.
He claimed that [Mr A]’s wife, [Ms A], telephoned him two days later (ie [in] April 2013), to ask if he knew where [Mr A] was. After about a week, the applicant and [Ms A] went together to the police to lodge a missing person report.
At hearing, the applicant said that he was not sure whether his wife was present during the discussion with [Ms A]; he commented that she saw [Mr A] and [Ms A] only occasionally, and did not really know them. The Tribunal sensed that the applicant was being guarded in his evidence about what the applicant wife knew. The applicant replied that he and [Mr A] had some mutual friends, but he had not made other enquiries, apart from having asked the people who had been present on the day of the beating. He dismissed the idea of [Mr A] suffering amnesia, commenting that he never had problems with his head previously. The Tribunal found it difficult to engage the applicant on his efforts to find [Mr A], apart from the filing of a missing person report.
In response to further questions, the applicant confirmed that he has heard nothing at all from or about [Mr A] since that time. He said that [Ms A] returned to Chechnya sometime in May 2013. He then added that he later went to the office of the Muslim political party that [Mr A] had supported, but they were unhelpful. He said that he has had no further contact with [Ms A] – in part, because he has some feelings of guilt about [Mr A]’s disappearance, and also because [Ms A] is a strict Muslim who may not welcome contact from unrelated men. Again, the applicant offered little by way of insight as to how [Ms A] or he intended to keep each other up-to-date on the search for [Mr A].
The Tribunal signalled its concern at the applicant’s account of his and [Ms A]’s efforts to locate [Mr A], as it appeared lacking in detail and resolve. The applicant replied that, in lodging a missing person report, they were trying to launch a search and get more information about the circumstances of his disappearance.
Threats: The applicant claimed that it was around this time that people started telephoning and threatening him. The male caller demanded that the applicant leave the area, or risk being killed. These threats continued ‘all the time’ and got worse. He said that he was scared, and took the precaution of disconnecting his landline. (He also claimed that this was the only advice and assistance that the Prosecutor’s Office offered when he approached them for help, which occurred later.) The police merely suggested that he switch his phone off. In response to the Tribunal’s questions, he said that he became more vigilant, but did not take any other precautions at that stage.
The Tribunal has several concerns about these claims and the supporting evidence. The account of the events [in] April 2013, such as the protest and the attack on the applicant, the applicant’s efforts to look for his friend [Mr A], and the start of the threatening calls, has been reasonably consistent. However, the applicant found it difficult to go beyond the basic elements of his claims, and give detailed, persuasive evidence. The Tribunal is concerned that there are gaps in the applicant’s evidence, which he does not appear to have really turned his mind to. These include the account of the protest day, from both applicants’ perspectives; their interaction when the applicant wife returned home to find that the applicant had been assaulted; and the subsequent efforts to find Imran. The Tribunal’s concern is not in the lack of specific recall of events that happened more than three years ago. Rather, it is that the applicants were vague about the surrounding events and the consequences. This causes the Tribunal to doubt that these claims are based on their actual personal experiences.
Police interrogation and assault: May 2013
The applicant claims that in early May 2013, he received a summons to attend an interview at the police station. He arrived at the station at 9 am. This turned out to be an interrogation. A police officer named ‘[name]’ racially abused him, as a Chechen, and then asked how he had killed [Mr A]. According to his evidence at the hearing, the applicant replied that he did not kill his friend; that he (the applicant) is a Chechen and knows his rights; and that he will complain to the Prosecutor’s Office. The police officer had the applicant taken away to a cell, where he remained for several hours and was beaten. This included, according to his written statement, being nearly drowned in a toilet bowl. One officer stood on his hand, and broke his [bone].
The officer asked the applicant to sign a written confession that he had murdered [Mr A]. The applicant refused. At this stage, his hand was already badly hurt. In the end, the officer the released the applicant, telling him to pack his things and never return.
The applicant said that he attended hospital after his release. He was given a brace for his [bone]. As for other medical issues, he said that he had [condition] for some time after that, presumably due to internal bleeding. The applicant said that he did not have any other visible injuries, apart from the broken (or bruised) [bone]. The Tribunal explored whether the applicant needed any follow-up treatment (for instance, for the [condition]), but did not receive any further details. The applicant said that he returned to work a few days later. Towards the end of the hearing, he observed that the police try to leave few visible signs of injury, implying that they achieve their goal by terrorising their victims.
The applicant noted that he told the hospital doctor that he had broken his [bone] in a street fight, and the doctor therefore recorded it as such. Had he told the doctor the truth – that the injury was the result of a criminal assault (even at the hands of the police), the doctor would have been obliged to forward the matter to the police for investigation. The applicant expressed frustration that this would have just made matters worse for him.
The applicant gave the Tribunal a statement from a medical imaging company in [city] stating that his [bone] had a deformity from a fracture that has healed; he also presented x-rays which the Tribunal observed and returned to him. The Tribunal accepts that the applicant has broken his [bone], but these documents do not shed light on when or in what circumstances this occurred. Furthermore, the Tribunal has some reservations about the applicant’s claim that a brutal police attack over several hours resulted in a broken [bone], and subsequent [condition] (which could indicate blunt trauma and internal injuries), without other visible injuries, and that, despite the claimed physical and psychological harm (including perhaps internal injuries), he was able to return to work just a few days later without further checks.
By any account, these claims are significant - the applicant suspected police involvement in the disappearance and possible death of his friend; they may have been linked with the menacing telephone calls; and they had assaulted and seriously injured him, tried to force him to sign a murder confession, and warned him to leave the area. Against this backdrop, the Tribunal asked the applicant whether he had tried to leave the area or take other precautions after this. The applicant replied that such things happen in Russia, and he (and the applicant wife) did not see it as a reason to leave the local area or Russia. He added that later events proved this to be a misjudgement.
In the Tribunal’s view, the applicant’s almost-casual response that he did not yet see the need to flee the local authorities in early May 2013, taken together with its other concerns, amounts to strong evidence that the incident did not take place at all. It now proceeds to consider the events that allegedly occurred in the following months, and the applicants’ conduct, before making its findings of fact.
Continued threats and violence after May 2013
The applicants claim that from May 2013 until their departure from Russia, they were subject to ongoing threats and violence, and they unsuccessfully sought redress and protection.
Attack on applicant wife: July
The applicant wife claims that in early July 2013, three men assaulted her. According to the applicant’s claim, ‘there was an attack on [his] wife, [and] she was threatened that they will kill us if we will not leave the country.’ The applicant wife gave some details of a brutal attack in a separate written statement of claims, and spoke to the Department delegate in private with some further details. At the Tribunal hearing, she said that she did not want to discuss the incident in detail, even in private. As noted in the decision under review (a copy of which the applicants provided to the Tribunal), the applicant wife thought that the attackers were linked to the police, and that she was targeted because of the applicant’s Chechen identity and past dealings with the authorities. She also added that she did not seek medical treatment, for personal reasons.
The Tribunal appreciates the need for sensitivity in considering such claims, and respected the wife’s wish not to elaborate on them. As presented, this incident is relevant to the applicants’ protection claims because it was part of the authorities’ continued targeting of the applicant (because of his Chechen identity and, perhaps, his attendance at the political protest), and because it signalled their willingness to also target the applicant wife as a member of his family. The Tribunal is of the view that it was neither necessary nor appropriate to examine the details of this alleged incident. Rather, it has assessed its veracity and meaning in the context of the applicants’ claimed experiences in Russia as a whole.
As discussed below, the applicants’ conduct as a whole – in particular, their continued residence in the apartment until at least one month later, in August 2013 – casts doubt on whether the police (or their agents) attacked the applicant wife in July 2013, for reasons linked with the applicant’s protection claims.
Appeals to the authorities
The applicant claimed that he sought assistance from the Prosecutor’s Office in August 2013. He wrote a letter in which he referred to the assault in April 2013, the interrogation and beating in May 2013, and the assault of the applicant wife in July 2013. He presented as evidence a doctor’s report on the treatment he had received for his broken [bone]. There are very few details of this appeal, and no supporting evidence (such as a copy of the applicant’s letter). The applicant said at the hearing that they merely suggested that he switch his telephone off, implying a lack of commitment to provide State protection to the applicants.
Ransacking of the applicants’ apartment
The applicants claimed that shortly after the applicant went to the Prosecutor’s Office, someone entered into their apartment and ‘destroyed’ it. At the hearing, the applicant clarified that it was ransacked – furniture, fittings, windows and personal items were smashed or broken. The Tribunal explored whether the applicant had any corroborative evidence – for instance, correspondence with the landlord or landlady, insurance papers, or photographic evidence. The applicant replied that his mother-in-law owned the unit. The couple moved in with a friend of the applicant wife’s immediately afterwards.
The Tribunal understands the applicants to be stating that they fled the apartment, and had no opportunity or inclination to document the damage that they had suffered. At the same time, however, the Tribunal detected no real interest on their part in checking whether there would be supporting evidence, such as repair bills that the applicant wife’s mother might have had to make. The Tribunal also has a more general concern as to how this incident fits in with the applicants’ timeline for departing Russia, which it discussed in detail at the hearing (see below).
At the hearing, the applicant also claimed that on his return home that day, he found his dog strangled in the apartment. He was visibly upset and shaken when mentioning this. A striking passage in the psychologist’s report also comments that, upon mention of this (which she linked to ‘an event in May 2013’, ‘[the applicant’s] eyes looked teary and he asked to stop the conversation. [His] mood was congruent to his affect and to the topic discussed’. The Tribunal accepts that the applicant’s dog died or was killed, and that this continues to upset him. However, it does not accept at face value that this occurred in August 2013 (during the home invasion) or May 2013, or for reasons linked with his protection claims.
The Tribunal also accepts that the applicants moved out of their apartment in August 2013, and lived in other addresses. Given its other concerns about these events, and the applicants’ credibility generally, and also taking into account the timeline of their visa applications (for [country] and Australia), the Tribunal does not accept at face value that the applicants made the move because local police or others ransacked their apartment.
Attempted murder of the applicant – September 2013
The applicant claimed that in late September 2013, he was sitting in his car after returning home (that is, to the apartment where they were staying) from work when [number] men surrounded the vehicle, shouted racist slurs and told him to stay in the car. They sprayed a flammable liquid on the car, and threw burning items at it. The applicant managed to get out of the car, and rolled on the ground to extinguish the flames on his jacket. The men ran away.
The applicant claimed that it was this incident – a direct attempt on his life – that made it dawn on him how serious his situation was. The Tribunal asked about his injuries, and whether he had any corroborative evidence. He said that his hands and arms were red, and his wife’s friend treated these with ointment. As for photographs, insurance or other evidence, the applicant said that he abandoned the vehicle and did not report the incident to the police, fire brigade, insurance company or others. He impressed on the Tribunal that, having almost being killed, he was not thinking straight at the time.

The Tribunal notes again the gaps and anomalies in this account. There is, for instance, little insight as to what happened to the perpetrators (or why they left the scene, if they outnumbered the applicant and were so brazen as to attack him in broad daylight); how the applicant avoided more serious injuries; or what supporting evidence this might have produced. What concerns the Tribunal is not merely the relative lack of detail, but the applicants’ apparent lack of curiosity or efforts to make enquiries on their own account.
The applicants’ conduct after May 2013
In the Tribunal’s view, the applicants’ response to the alleged police assault of the applicant in early May 2013 incident is, by itself, strong evidence that it did not occur.
Their conduct in the following months – during which there were other serious incidents, such as the assault of the applicant wife and the ransacking of their apartment – adds to its doubts. Of particular concern is the applicant’s statement to the Tribunal that he did not treat the May 2013 police treatment so seriously. Rather, it was only after the attempted murder in [date] September 2013 that he realised that the couple had to leave Russia. In the Tribunal’s view, this statement fails to acknowledge the significance of the alleged incidents prior to attempted murder, and lacks credibility.
Relevantly, the applicants remained living in their usual residence in Yoshkar-Ola until at least August 2013 (according to their protection visa applications), and were in Yoshkar-Ola until their departure from Russia in late October 2013.
§ The applicants claimed to have moved their place of residence twice, in August 2013 (after the alleged ransacking of their apartment and killing of the applicant’s dog) and again in September 2013 after the attempted murder of the applicant.
§ The Tribunal explored with them whether they contemplated moving away from Yoshkar-Ola. The applicant replied that this was not feasible. Due to his age, and despite his military service exemption on medical grounds (being [condition]), he still needed to de-register with the Defence Ministry office in Yoshkar-Ola (and presumably the police) and re-register in any new place of residence.
§ The Tribunal detected no real interest on the applicants’ part in considering their options for relocation in Russia. It finds unconvincing the applicant’s claimed fear that the local police might block his de-registration from Yoshkar-Ola, when they allegedly wanted him to ‘pack up and leave’. It is unclear why the applicants did not at least explore that as an option, when they downplayed the risks that the police might also try to block the issuance to them of new Russian passports.
The Tribunal also queried the applicants’ efforts to depart Russia, and the timing of these. It noted that they obtained new passports [in] 2013, and departed Russia in late October 2013. It expressed particular interest in knowing whether they had considered other options to leave Russia more quickly and cheaply, given their claims to fear persecution.
§ The applicants initially stated that they needed to obtain new biometric passports. The Tribunal drew to their attention that the psychologist mentioned that they had applied unsuccessfully for [country] visas in August 2013. It expressed surprise that, despite some discussion already on their efforts to leave Russia more quickly, they had not mentioned their approach to the [country] Embassy. In response, the applicant said that a friend in a travel agent acted on their behalf, and it appeared that their old passports were not suitable for travel. The Tribunal found the applicant’s guarded in their evidence about their travel plans.
§ The applicants’ acquisition of new passports in [month] 2013 and their unforthcoming evidence about their travel plans (including their unsuccessful [country] visa application) add to the Tribunal’s doubts about the truth of their protection claims. First, their confirmation that they applied for [country] visas in August 2013 – more than two months after the alleged May 2013 assault and threats of trumped-up charges – suggests that they were not acting urgently in response to any threats from that incident. Second, the timing of the [country] application and of the new passport grant in [month] 2013 indicates that, contrary to their evidence at hearing, they did not decide to leave Russia only after the alleged attempted murder in September 2013.
The applicant remained employed throughout, although he claims to have taken unpaid leave in October 2013. The applicants’ account of their response to the alleged threats – that they blocked their landline telephone, and moved to temporary accommodation from August 2013 (which would also have coincided with the timing of their [country] visa applications) – lacks credibility. Their employment and continued residence in Yoshkar-Ola (even at different addresses) means that the local police or other authorities could easily have located the applicant if he was a person of interest to him. In the Tribunal’s view, the alleged precautionary measures lack credibility. The Tribunal concludes that neither applicant had a genuine fear of harm, from the local police or anyone, for any reason.
Findings of Fact
The Tribunal has considered the applicant’s claims and evidence individually and cumulatively Taking all of the above concerns together, and in particular having regard to the applicants’ conduct and movements in Russia, the Tribunal makes the following findings:
§ The Tribunal accepts that the applicant is of part Chechen origin. It accepts that Russians perceive him as being of mixed ancestry, and that he has experienced some discrimination (such as teasing at school) as a result. It does not accept that such discrimination has amounted to serious or significant harm.
§ The Tribunal accepts that the applicant may have attended or observed a political protest in Yoshkar-Ola [in] April 2013. It accepts that he is critical of some aspects of the Russian government led by Putin, but it does not accept that he has any political opinion or conviction that motivated him to be politically active, or that the Russian (or local) authorities perceived him as such.
§ The Tribunal does not accept that the applicant and a Chechen friend named [Mr A] fled the scene of the protests; that three police found them nearby; that they abused and assaulted the young men (whether because they concluded that they were Chechens, for political reasons, or any combination of these); that one of the officers knocked the applicant unconscious; or that the applicant’s friend [Mr A] disappeared and was never heard of since.
The Tribunal has rejected the claims concerning the [date] April 2013 attack and disappearance, and therefore does not accept the sequence of claims that the applicant claims flows from that. Additionally, it has significant concerns about the applicants’ conduct in the period after that (in particular, their lack of precautionary measures and the timing of their departure arrangements). It has also identified a number of concerns about the substance of the applicants’ claims, such as gaps and incongruities. In view of these concerns, considered together: -
§ The Tribunal does not accept that the applicants lived in fear, and were making enquiries about the applicant’s missing friend.
§ The Tribunal does not accept that the police summonsed the applicant to attend an interrogation in May 2013; that they racially abused him; that they detained and physically assaulted him (including breaking his [bone], causing internal bleeding, inflicting psychological harm, or any other harm); that they tried forcing him to write a murder confession; or that they released him with the threat that he would face more serious harm if he did not leave (the local area or Russia). The Tribunal accepts that the applicant has broken his [bone] at some point, but does not accept that this injury was related to his current protection claims.
§ The Tribunal does not accept that [number] policemen or agents acting on their behalf seriously assaulted the applicant wife in July 2013, for reasons of her husband’s Chechen background, their wish to drive the applicants out of Yoshkar-Ola or Russia, or for any other reason linked with their protection claims.
§ The Tribunal does not accept that the applicant complained to the Prosecutor’s Office or other authorities, or made other efforts, to seek redress for official malpractice.
§ The Tribunal does not accept that the applicants’ apartment was ransacked in August 2013, for reasons that they suspect are linked with their protection claims. The Tribunal does accept that the applicant’s dog died or was killed, and that this continues to cause him distress. However, it finds that this was for reasons unrelated to the applicants’ protection claims.
§ The Tribunal does not accept that a group of men set the applicant’s car on fire and tried to burn him alive in September 2013.
§ The Tribunal finds that the applicants obtained Russian passports in [month] 2013 after their [country] visa applications were unsuccessful, and in order to present biometric passports as a requirement for the grant of Australian visas. It finds that they left Russia for reasons unrelated to their protection claims.
§ The Tribunal does not accept that either applicant feared Convention-related persecution or ‘significant fear’ at the time of their departure from Russia.
For the sake of completeness, the Tribunal rejects all associated claims.
Assessment: Refugee criterion
The Tribunal now assesses whether, on the basis of the findings of fact above, the applicants’ future conduct if they return to Russia, and relevant country information, either or both of them have a well-founded fear of Convention-related persecution, now or in the reasonable foreseeable future. The Tribunal has taken into account all the applicants’ circumstances, including the psychologist’s report from late 2013 and early 2014 that the first-named applicant suffers mild levels of depression, anxiety and stress.
The first-named applicant
The Tribunal accepts that the applicant (the applicant husband) has Chechen ancestry; that Russians may sometimes perceive him as having non-Russian features, and discover that he is part-Chechen; and that this had led to some degree of discrimination in the past. However, having regard to the applicant’s past experiences - including his past employment, living arrangements and travel, and in light of its rejection of his claims about ongoing police violence – it finds that there is no real chance of him suffering serious harm due to his Chechen ancestry.
The Tribunal accepts that the applicant may have once attended or observed a political protest in Yoshkar-Ola in April 2013, in the company of a friend. However, it does not accept that that there is a real chance of the authorities perceiving him to be a political dissident, based on his presence at such a meeting in the past, or for any similar reason. At the hearing, the applicant indicated that he has some political views, which were at least implied in his criticism of Russia’s treatment of Chechens and other minorities, and his account of police corruption and violence (although the Tribunal does not accept that these were based on his own direct experiences). However, the Tribunal finds these are low priority interests for the applicant. It does not accept that he has a political opinion or conviction that has in the past, or that will in the future, motivate him to engage in political activities. The Tribunal is therefore not satisfied that he faces a real chance of the Russian authorities targeting and seriously harming him for reason of any political opinion, actual or perceived. The Tribunal is also not satisfied, given his low level of political interest, the applicant will have to refrain from political activity or modify his conduct in order to avoid persecutory harm.
The second-named applicant
The Tribunal accepts that the applicant wife is a member of the applicant’s family, and it notes that a family is capable of constituting a particular social group within the meaning of the Convention. The Tribunal has found above – having regard in particular to the applicants’ conduct and their accounts of the events before and after the alleged assault – that she was not the victim of a violent attack in July 2013, that was linked to the applicant’s ethnicity, his presence at a political protests, or any of the (now-rejected) events that took place between April and July 2013. The Tribunal therefore finds that she has not been subject to serious harm for reason of her membership of the applicant’s family in the past, or for any reason related to the couple’s protection claims. In these circumstances, the Tribunal finds that there is no real chance of her being subject to serious harm due to her membership of the applicant’s family, her association with him, or for any reason linked to their protection claims, in the reasonably foreseeable future.
In light of these findings of fact and this real chance assessment, it is unnecessary for the Tribunal to determine whether the applicant wife’s claims based on her membership of the applicant’s family would (if accepted) amount to persecution for reasons of her membership of a particular social group that consists of his family, having regard to the qualifications in s.91S of the Act.
Summary
The Tribunal has considered the applicants’ claims individually and cumulatively. For the reasons set out above, it does not accept that if the first-named applicant and/or the second-named applicant returns to Russia now or in the reasonably foreseeable future, there is a real chance that either of them will face serious harm for a Convention reason, including the first-named applicant’s Chechen ethnicity (actual and perceived), any actual or imputed political opinion, or arising from their family membership.
The Tribunal finds that neither applicant has a well-founded fear of Convention-related persecution, now or in the reasonably foreseeable future, if they return to Russia. It is therefore not satisfied that either meets s.36(2)(a).
Assessment: Complementary protection
The Tribunal has considered whether on the evidence before it, that there would be a real risk that the first-named applicant or the second-named will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Russia.
Based on the findings of fact above, and the Tribunal’s view of the applicants’ circumstances as a whole, it finds that there is no real risk that either the first-named applicant or the second-named applicant will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflict on either of them, such as to meet the definition of torture; or the definition of cruel or inhuman treatment or punishment; or the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk that either will suffer arbitrary deprivation of their life, or the death penalty. The Tribunal finds no grounds that suggest either applicant will be subject to significant harm, for any reason, if they return to Russia.
Accordingly the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Russia, there is a real risk that either will suffer significant harm: s.36(2)(aa).
Conclusion
For the reasons given above, the Tribunal is not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that neither applicant meets 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 either applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
For the reasons given above the Tribunal is not satisfied that either applicant is a person in respect of whom Australia has protection obligations. Therefore neither applicant is able to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants Protection visas.
James Silva
Member

ATTACHMENT - RELEVANT LAW
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.
Refugee criterion
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).
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.
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.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
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.
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 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.
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.
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.
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.
Complementary protection criterion
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’).
‘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.
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
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.

[2017] AATA 369

21 February 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Standing

Appeal