1516927 (Refugee)

1516927 (Refugee) [2018] AATA 917 (7 March 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1516927
COUNTRY OF REFERENCE:                  Russian Federation
MEMBER:Luke Hardy
DATE:7 March 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 07 March 2018 at 3:36pm

CATCHWORDS
Refugee – Protection visa – Russian Federation – Political opinion – ROT Front party member – Past harm – Criminal prosecution – Police summonses – Evidence had discrepancies, was vague and confusing – Document fraud in Russia – Falsified evidence – No significant role in party
LEGISLATION
Migration Act 1958, ss 5(1), 5H(1)(a), 5H(1)(b), 5J(1)-(6), 5K-LA, 36(2)(a), (aa), (b), or (c), 36(2A) and (2B), 65, 91R, 91R(1), 91R(1)(a), 91R(1)(b), 91R(1)(c), 91R(2), 91S, 499
Migration Regulations 1994, Schedule 2

CASES
MIAC v SZQRB [2013] FCAFC 33
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

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).
The applicant is a citizen of the Russian Federation. He applied to the Department of Immigration and Citizenship for a Subclass 679 (Sponsored Family Visitor) visa [in] October 2012. A primary criterion to be satisfied at the time of decision is cl.679.224, which requires the visa applicant to satisfy the Minister that the visa applicant's expressed intention only to visit Australia is genuine. The delegate in that case decided to refuse to grant the visa [in] October 2012 on the basis that the visa applicant did not meet cl.679.224 because she was not satisfied the visa applicant had provided sufficient evidence to demonstrate that he genuinely intended only to visit Australia temporarily. The MRT set aside that decision on 6 August 2013.
The applicant thus entered Australia as a sponsored family visitor visa [in] October 2013. He lodged a protection visa application [in] November 2013 and the delegate refused to grant the visa [in] November 2015. The applicant subsequently sought review by this Tribunal.
The applicant appeared before the Tribunal on 7 September 2017 and 1 March 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Russian and English languages.
The applicant was assisted, in relation to the review, by his [son], who also attended the Tribunal hearing. The younger [son] also gave evidence in support of his father.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues
The issue in this case is whether or not the applicant is entitled to protection in Australia as a refugee or, if not on complementary protection grounds.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Claims to the Immigration Department
The applicant is an ethnic Russian who makes no claims regarding race, religion, nationality or particular social group; his claims relate to political opinion.
In his original protection visa application, the applicant claimed to come from [City 1], in [Siberia], where he joined a political group called the ROT Front in 2010. He also provided a colour photocopy of a membership card featuring his name and photograph, dated 2011. He claimed that from 2011 he became involved in the Front’s protests against the legal conduct of state Duma elections of that that year. He also said that he and his Front colleagues also mobilised in regard to the 2012 presidential elections. He said that the Front was in particular concerned with the legality of the tenure of the local governor. He claimed that in his role with the ROT he called for a referendum with a view to gaining public support for fresh gubernatorial elections.
The applicant claimed that from 2011 he started receiving threats of physical violence over the telephone. He claimed he suffered an assault or attempted assault [in] June 2013.
The applicant further claimed he feared prosecution under Articles 141 Part 3 and 280 Part 1 of the Russian criminal code.
I note that Article 141 Part 3 of the Russian criminal code is as follows:
Article 141. Obstruction of the Exercise of Electoral Rights or of the Work of Electoral Commissions …
3. Interference, using one's official capacity or office, in the exercise by an election committee or a referendum committee of their powers, established by the laws on elections and referenda, for the purpose of affecting decisions thereof, that is, a demand or direction of an official concerning registration of candidates, lists of candidates, counting votes of electors or of referendum participants, as well as other matters pertaining to the exclusive authority of the election committee or referendum committee, as well as the unlawful interference in the functioning of the State Automated System of the Russian Federation "Elections" -
Shall be punishable with a fine in the amount of from 100 thousand to 300 thousand roubles or in the amount of the wage or salary, or other income of the convicted person for the period of from one to two years, or by compulsory labour for a term of up to four years, or by deprivation of freedom for a term of up to four years accompanied with a fine in the amount of up to 80 thousand roubles or in the amount of the wage or salary, or other income of the convicted person for a period of up to six months or without such.[1]
[1] >
I note that Article 280 Part 1 of the Russian criminal code is as follows:
Article 280. Public Appeals for the Performance of Extremist Activity
1. Public appeals for the performance of extremist activity -
Shall be punishable with a fine in an amount of up to 300 thousand roubles, or in the amount of the wage or salary, or any other income of the convicted person for a period of up to two years, or by compulsory labour for a term of up to three years, or by arrest for a term of four to six months, or by deprivation of liberty for a term of up to three years with the deprivation of the right to occupy certain posts or to engage in a certain activity for the same time term.
The applicant claimed that he feared prosecution amounting to persecution for reasons of “political opinion” from the police and other authorities responsible for Kemerovsky oblast (district).
Along with his passport, the applicant submitted a number of documents and translations of same to the Department (at ff. 2 to 61):
·The abovementioned photocopy of the ROT Front membership card dated [in] September 2011 (not 2010) and valid to September 2016, identifying the applicant as “co-ordinator” for the [City 1] branch;
·A photocopy of a purported statement by the applicant to [City 1] police, evidently handwritten on a pro forma police report sheet, dated [in] November 2012, alleging that on that date at 18:15 the applicant was assaulted, though not robbed, by an unknown person aged around [age] years, after leaving the office of ROT Front, “of which I am a member and co-ordinator since [date] August 2011”;
·A photocopy of a purported medical certificate stating that the applicant was admitted to hospital at 19:30 [in] November 2012 and discharged [in] November 2012 with injuries to the [body];
·A photocopy of a purported statement to [City 1] police, evidently handwritten on a pro forma police report sheet, dated [in] March 2013, alleging that on that date at 20:30 the applicant was assaulted near his apartment by two unknown persons and then “taken to the emergency department” where he was interviewed by police officers;
·A photocopy of a purported police investigation report dated [in] March 2013;
·A photocopy of a purported medical certificate covering hospitalisation of the applicant from [dates] March 2013;
·A photocopy of a purported statement to [City 1] police, evidently handwritten on a pro forma police report sheet, dated [in] June 2013, alleging that on that date around 20:30 the applicant was attacked in his car by an unknown male who tried to force his way into the vehicle, and then later called on his mobile telephone by an anonymous person who threatened to harm him if he did not cease his campaigning activity;
·A photocopy of a purported [date] August 2013 summons to a [City 1] police station to answer questions [in] August 2013 “as a defendant” in matters relevant to Articles 141 Part 3 and 280 Part 1 of the Russian criminal code, along with a warning that non-compliance could be a breach of Article 118;
·A photocopy of a purported [August] 2013 summons to a [City 1] police station to answer questions [in] August 2013 “as a defendant” in matters relevant to Articles 141 Part 3 and 280 Part 1 of the Russian criminal code, along with a warning that non-compliance could be a breach of Article 118;
·A photocopy of a purported [in] August 2013 summons to a [City 1] police station to answer questions [in] August 2013 “as a defendant” in matters relevant to Articles 141 Part 3 and 280 Part 1 of the Russian criminal code, along with a warning that non-compliance could be a breach of Article 118;
·A printout of a travel itinerary, in Russian, detailing [names of] flights in October and November 2013;
·A photocopy of a permis de conduire for internal travel by the applicant in Russia.
The applicant’s passport shows that he left Russia legally [in] October 2013.
Evidence to the delegate
For the purposes of this review, the applicant submitted a copy of the delegate’s decision record which contains a summary of evidence and issues that arose in the course of his protection visa application interview [in] September 2014.
The applicant evidently told the delegate that the November 2012 assault occurred on the street, rather than in a car park as stated in the report to the police, that some people helped walk him to the nearby hospital, whereas it is claimed in the police report that he was taken there by ambulance, and that the police came to interview him at the hospital the following day. That would have been [date] November 2012 but, I note, the report submitted to the Department in evidence in this matter states that it was made on [the day before] November 2012 at 8:20pm (“20:20”), the same day as the alleged assault.
The applicant evidently provided discrepant about the [date] March 2013 assault. The English translation of the purported police report about that alleged incident states that it occurred near the entrance to the applicant’s home when two people attacked him, after which he lost consciousness and later awoke in hospital. However, at the protection visa interview with the delegate, the applicant evidently said the incident occurred as he was leaving his office, that only one person assaulted him and that he was taken to the hospital in his own car. He also told the delegate that the police came to the hospital the next day to interview him, but I note from the English translation of the report that it was supposedly completed on the same day as the alleged attack at 11:40pm (“23:40”) on the same day as the alleged attack.
The applicant also evidently gave the delegate information about the alleged June 2013 attack that was discrepant with the information in the purported police report about the incident.
The delegate raised concerns about these discrepancies with the applicant and, in response, the applicant said he had confused the two events with each other. He also said that after two years he had suffered from poor memory. The delegate noted that at the interview the applicant expressed confidence in his ability to recall events.
The delegate evidently gave little weight to the applicant’s explanations for discrepancies in his evidence. Considering the discrepancies he found, and also considering independent evidence regarding the ease with which false documents can be produced in Russia, the delegate gave very little weight to the documentation the applicant had submitted in support of his protection visa application.
The applicant evidently provided vague and confusing evidence about how long he continued to receive threatening telephone calls.
Asked by the delegate who founded the ROT Front, the applicant incorrectly identified another figure in the party. The delegate gave the applicant the benefit of the doubt regarding whether or not he was a member of the party, but concluded on the basis of independent country information that there was no evidence of party leaders being targeted by state or non-state agents for reasons of their roles or activities with the ROT Front.
The delegate’s decision record refers to the applicant’s unsuccessful applications to come to Australia as a sponsored family visitor. As at August 2013 he was awaiting the outcome of an application for review by the then MRT. That review, successful, was finalised in August 2013, according to the text of the delegate’s decision record. The delegate gave some weight to the fact that the applicant evidently awaited the result of his visitor visa review application before attempting to leave Russia and drew negative inferences from the applicant evidently not having any alternate plans or preparations for leaving the country in the event of the MRT affirming the Department’s visitor visa refusal in a decision dated 6 August 2013.
The applicant confirmed at the protection visa interview that his son had been a [occupation] in Russia prior to coming to Australia. The applicant evidently said at the protection visa interview that he had wanted to return to Russia but had been stopped by his son. The delegate considered it concerning that the applicant would have wanted to return to Russia in the claimed circumstances.
The delegate’s decision record reports the applicant having said that just before he arrived in Australia, his son’s wife left him, taking their two children. He evidently claimed she did not want to live under the same roof as the applicant because, having heard what had happened to him with the authorities and others in Russia, she feared for her and her children’s safety and did not them staying under the same roof as he was. This evidence indicates that the applicant’s ex-daughter-in-law wanted little or nothing to do with him.
The delegate’s decision cites (at page 8) several independent sources describing the ROT Front as an ongoing coalition of left-wing political groups, including the Left Front and trade unions, committed to building or re-building socialism in Russia.
Independent country information
The Russian United Labour Front, or ROT Front
I have had regard to the following self-appraisal from the ROT Front, as presented in the English version of its own website:[2]
[2]
Russian United Labour Front (ROT FRONT – the Russian abbreviation) is a wide coalition of communists and militant Trade Unions that was created several years ago in Russian Federation. Its core is composed of the Russian Communist Workers Party (RCWP) and of such Trade Unions as “Defense of Labour”, “Interregional Trade Union of car industry”, “New Trade Unions”.
RCWP was created in 1991. The “Communist Initiative Movement” that had sprung to life within CPSU and that resisted the course of the country’s leadership towards Capitalism, served as its nucleus. RCWP adheres to orthodox Marxism-Leninism and advocates for the revolutionary overthrowing of Capitalism and establishing of the Soviet Power.
Both RCWP and ROT Front have nothing to do with the bourgeois “opposition”. There are no professional politicians among us. No one can blame us for bargaining with the authorities. We are not helped by sponsors. We don’t give empty soothing promises. All that we want is to organize people to fight for their rights, for a decent living. First of all this applies to the working people, that earn their daily bread in an honest way.
FOR WHAT WE STRUGGLE:
RCWP renders our assistance to any kind of struggle that is carried out by working people for their basic rights and interests. Our main task is to promote the organization of the class struggle simultaneously with conducting political education of the working people. Only organized, united, advanced workers are capable to eliminate Capitalism and to take the power.
It’s a long way to the Revolution. With the use of ROT FRONT we’ve been solving some intermediate tasks:
·Real power of Trade Unions;
·Correspondence of the local Labour Code to the requirements of ILO (International Labour Organization);
·Minimal wages should not be lower than the scientifically estimated subsistence level;
·Real guarantees for the constitutional right for a strike;
·Reduction in communal and transport tariffs;
·Real freedom of speech for all that doesn’t only apply to the authorities and rich;
·Democratization of the laws on meetings and manifestations;
·Strengthening of local governance system;
·Defense of the people’s right for a healthy environment.
These are only basic tasks to organize our activities.
HOW WE WORK
Our two main tasks now are organization and propaganda. Working people can only achieve success in case they co-ordinate their activities and understand clearly their basic class interests. RCWP and POT FRONT are involved in all sorts of activities aimed at organizing working people. Here are some directions of our:
Support of independent Trade Unions
We help hired personnel to organize themselves for the defense of their rights. To do this there are organized local cells of the Trade Union “Defense of Labour”. Both juridical, methodological and information support for their activities is provided. Political education is provided.
Co-operation with social movements
It’s very often that we meet arbitrariness not only at work but in our daily life as well. We help to establish local groups of activists that fight against arrogant officials, skyrocketing communal tariffs and against attempts to eliminate social benefits.
Struggle for the rights of students
The youth section of RCWP and ROT FRONT takes active part in the work among students, tries to establish clubs and circles for youngsters, to organize interesting discussions.
Political education
Truth is born of arguments. Free discussion groups have been organized for various subjects. Everyone can express their opinion and to mix with representatives of different parties and movements.
IT IS A JOINT ACTIVITY ONLY THAT UNITES!
Most of political organizations in Russia have been established either for unscrupulous traffic in votes, or as a sort of mixed club without any particular aim or meaning.
We call on people to unite in the process of common work, of our joint purposeful struggle. Of course it doesn’t exclude either interesting pass-time or vivid actions, nevertheless the main force that unites us are real common activities!
I have also had regard to the following information about opposition parties in Russia[3]:
[3] “Russian opposition: inside or outside the system?” by Grigorii Golosov, ODR, 1 September 2011,
Opposition parties in Russia fall into two categories, described by the Russian press as ‘system’ and ‘non-system’. The ‘system’ opposition is made up of the official political parties entitled to participate in elections. This means they have fulfilled the requirements of the Law on Political Parties: a multitude of technicalities relating to the organisational structure of the parties, their programmes and financial accountability regulations. But the main condition is extremely difficult to satisfy, because it requires a party to have no less than 45,000 members.
Opposition parties inside the system
Before autumn 2006 there were more than 30 parties in Russia, but many of them were subsequently closed down because they didn’t meet the legal requirements. Today there are only 7 left: the government party ‘United Russia’ and 6 other parties which are regarded as ‘system’ opposition parties. 3 of them have representatives in the lower chamber of the Russian Parliament (the Duma): the Communist Party of the Russian Federation (KPRF), ‘Just Russia’ and the Liberal Democratic Party of Russia (LDPR). There are 3 others, which are not represented in the Duma: ‘Right Cause’, ‘Yabloko’ and ‘Patriots of Russia’. The main difference between the parliamentary and non-parliamentary parties is that the first are entitled to take part in elections without the imposition of any additional conditions, whereas the second have to demonstrate their entitlement to participate by collecting a large number of signatures.
Official registration guarantees not only the right to take part in elections, but a range of other privileges, the most of important of which is the right to financial support from the state and to accept private donations. For the opposition parties inside the system the withdrawal of these privileges would be extremely painful. But the stipulations of the Law on Political Parties mean that any party can lose its registration at any moment for some formal reason or other.
Firstly, the Ministry of Justice can decide that a party no longer has enough members to comply with the law. When there was a massive check on all the parties in 2006, Ministry employees carefully checked all the party membership lists: they were looking for members who were underage, dead or not resident at the given address. Given that in a list of 45,000 people there are bound to be a certain amount who fall into these categories, none of the parties can ever feel completely safe.
Secondly, the Ministry of Justice can control a party’s internal life in that it registers the eligibility of its party organs. If Ministry officials decide that a party conference has in some way deviated from its regulations e.g. delegates were elected with some kind of infringement of the formalities or the voting was incorrectly organised, the steering committees elected at the conference are deemed to be ineligible. Formally this doesn’t deprive a party of its registration, but it renders it almost unable to function, as its decisions are no longer recognised by government agencies. More particularly, that party is unable to put forward candidates for elections.
Finally, Russian elections are organised in such a way that no one party can take for granted its ability to overcome the extremely high 7% electoral threshold. It is generally agreed that falsification during elections allows 5-10% of votes to be ‘passed on’ from one party to another without any particular difficulty. During the regional elections in the period 2008-2011 the Communist Party’s average support rate was 16.6%, for ‘Just Russia’ it was 10.4%, for LDPR 10.3% and for the others even lower. Outspoken criticism of the authorities during an election campaign can irritate them and result in the organisers removing a percentage of its votes from a party, which then makes it easy to deprive it of its representation.
For this reason the Russian 'system' opposition parties are all extremely ready to compromise with the authorities. This manifests itself in an unwillingness to criticise the main government figures or their policies, and also in their choice of candidates. It is, for instance, well known that the LDPR candidate lists often include not only party members, but people put there at the insistence of high-ranking officials like Vladislav Surkov. It is also clearly understood that 'system' opposition parties cannot put forward candidates who are likely to be rejected by the Kremlin.
The listless, streamlined campaigns of the 'system' opposition parties; its willingness to compromise with the authorities; the absence of any vibrant, real opposition figures; its inability to concentrate on real problems – all diminish the opposition's electoral potential. Some of these parties (chiefly KPRF and LDPR) have loyal support groups among the voters, but there is no chance of these groups increasing in size. The influence of 'Just Russia' was in many ways predicated on its position as a privileged Kremlin project to edge the KPRF off the political stage. But today the position of party leader Sergei Mironov is enfeebled and the role of the 'second party of government' is being tried out on a new project, 'Right Cause', led by the oligarch Mikhail Prokhorov.
On the whole the 'system' opposition is made up of niche parties. Each one has a narrow support group and induces feelings of antagonism in the main body of voters. This is why the 'system' opposition suits the Kremlin: voters don't have to vote for 'United Russia' because they like it, but because they like the others even less. The rules of the game in Russia are such that almost no one likes the 'system' opposition.
And outside..
The 'non-system' opposition is made up of a few political parties that do actually exist, but are not recognised by the government and have no right to take part in elections. They have all tried on more than one occasion to register, but have been formally turned down. The best known of them are the People's Freedom Party, 'Other Russia' and the Russian United Labour Front. With no possibility of taking part in elections and their range of possible actions limited by their lack of official status, these parties have to focus on organising demonstrations and other actions of protest, most of which are banned and then broken up by the authorities, and on advertising in the media. But official media are mostly under government control, so they ignore the activities of these parties. As a general rule their only hope is the internet. But the spread of the internet in Russia began relatively recently and most users have a pretty low level of interest in politics.
3 election strategies
It's not surprising that people in Russia know little about the activities of these organisations. But they do have a degree of influence on the best-educated, relatively well-off people, who are mainly concentrated in the largest cities. So their pre-election strategies are also significant. In Moscow on 23 August the role of the 'non-system' opposition in the run up to the elections was debated. Almost all the unregistered organisations took part in the debate, alongside representatives of two registered parties, the KPRF and Yabloko. That the participants in the debate came from such a wide range of backgrounds is evidence of positive shifts in Russian opposition politics. But on the main questions they failed to reach a consensus.
There was a wide range of viewpoints, including the fairly exotic (e.g. thinking citizens should demand to have their names removed from the electoral register). But the prevailing two opinions were: to call for a boycott of the elections, or to spoil voting papers. None of these views in my opinion makes any sense.
An election boycott would only have any meaning if there were a real chance of achieving a really low turn-out. But there isn't. Ways of organising the turn-out over the past few years have included mobilisation by the administration of significant sections of the population who are dependent on the state (pensioners, soldiers, public sector workers, students etc.) and the virtual bribery of non-politicised groups, which are lured to the ballot box by lotteries, sales of goods at knock-down prices and a range of free services on offer. In practice, it is only these attractions that bring out approximately 50% of the electorate to vote, but doctoring the results easily brings this statistic to 70%. So the authorities don't have to face even a symbolic loss, and 'United Russia' can achieve an almost 100% victory.
Spoiling voting papers would represent a somewhat more rational strategy. The problem is that it depends entirely on members of the electoral committees, which, as is only to be expected, count the spoilt papers as invalid.
Regional elections have shown, however, that in practice votes lost in this way are allocated to United Russia. This is to do with the special way elections are monitored: only the registered parties are allowed to appoint observers and members of the electoral committees and their first concern is for their own results. No one takes any trouble to see that the spoilt papers are correctly counted.
This implies that the most sensible strategy for the 'non-system' opposition is to call for votes to be cast for any party other than 'United Russia', as suggested by the well-known political blogger Alexei Navalny in the spring of 2011. The aim is to cause maximum damage to the authorities by minimising 'United Russia's' result. The idea is that the 'system' opposition will to a certain extent be able to defend the votes cast for it, so the effect will not be completely obscured by rigging the voting figures. Of course, the strategy of voting for any other party cannot alter the fact that all the 'system' opposition parties without exception have colossal disadvantages in the eyes of critically-minded voters. What it can do it to push those who are extremely doubtful that there is any point in turning out for an election, or even who entertain the possibility of voting for United Russia, towards a more reasonable step for the reality of today. This is the strategy of the least evil.
The main problem with this strategy is that it demands a degree of self-denial in favour of the 'system' opposition parties, which are profoundly alien and indeed often at loggerheads with them. The 23 August debates showed that many 'non-system' opposition leaders are not prepared to do this. It's a fact that the Russian political system is intentionally constructed in such a way as to minimise the possibility of cooperation between the various opposition forces. Direct cooperation brings no immediate advantages to either the 'system' parties, who quite reasonably fear that it could result in punishment from the Kremlin, or the 'non-system' parties, who regard discrediting the existing system (including the 'system' parties which are an integral part of it) as an important objective.
Clearly the best cooperation strategy for today's opposition is not coordination, but so-called 'concerted action', which was part of the transition to democracy in both Chile and South Korea. This strategy allows for political actors to preserve their autonomy and a critical attitude to their partners, while making efforts to achieve a result for the common good and refraining from actions which could minimize this result.
Since a result of equal advantage to all would be achieved by causing the greatest possible damage to the political monopoly, its practical expression would be a call by the 'non-system' opposition for votes to be cast on 4 December for any party other than 'United Russia'.
Document fraud in Russia

According to the Department of Foreign Affairs (DFAT)[4]:
[4] DFAT, DFAT Report 285 ‘RRT Information Request: RUS16552’, 1 April 2004
… The following response has been prepared in consultation with DIMIA, which has a unit in Moscow dedicated to investigating instances of fraud and which has considerable expertise in identifying document fraud.
General
2.        As with many countries undergoing economic transition, corruption and bribery remain a significant problem within the Russian Federation. It is widely accepted that to varying degrees, corruption impacts upon many sectors of economic life and society. Salaries in many sectors remain low, especially in Government employment, thus increasing the susceptibility of officials to take bribes as a means of supplementing their existing incomes. The scale of the problem can be demonstrated by the Government's own statistics. The Russian Interior Ministry has reported that in the first eleven months of 2003, it exposed some 360,000 economic crimes, and of these, bribe-taking cases had increased by 12%. The Economist Intelligence Unit Legal and Regulatory Risk Assessment for 2004 estimates that in 2001, bribes amounted to 4% of Russia's gross domestic product. Independent analysts suggest these figures are conservative estimates which likely only represent the tip of the iceberg.
3.        Document fraud in Russia forms part of this overall picture and can take various forms, including:
*          Counterfeit documents made up from scratch;
*          Genuine documents which are fraudulently issued to a person
not entitled to them, often in connection with a bribe.
*          Genuine documents issued by an appropriate authority but which
are subsequently altered in some way.
4.        DIMIA has encountered all of the above types of document fraud in the context of examining visa applications and would rate Russia as being of medium-to-high risk in terms of document fraud across its visa caseload. DIMIA's experience is that almost every type of document required in the context of a visa application is available, for a price, on the black market, through corrupt officials, and/or organised groups of document forgers. Forged or falsified documents overall range in quality from awful to almost undetectable. Types of document fraud vary, ranging from relatives, business associates or friends providing an employment reference or other document as a "favour", (and being prepared to confirm that the information contained in the document is correct), to a government official issuing a document, including a travel document, registration stamp, or police clearance to which a person is not entitled in exchange for an amount to supplement their wages. DIMIA also regularly encounters instances where English translations of documents which have been provided by a visa applicant are inaccurate or deliberately misleading.
5.        Anecdotal evidence gathered from locally engaged staff and external Russian contacts suggests that the relative ease with which one can obtain a forged or fraudulent document in Russia varies from very easy to very difficult, depending on the type of document sought, the quality of the forgery, and the type of issuing authority/organisation. A poor quality forgery of a document (for example, produced by scanner or colour photocopier) was rated as very easy to obtain. Obtaining a genuine document with falsified information, or a genuine document (to which one was not entitled) from an official were rated as more difficult to obtain. Russians believe that factors which would increase the chances of procuring a fraudulent document were the financial ability of the applicant to pay a bribe and the presence of some sort of personal connection or contact inside the relevant organisation to help facilitate the transaction.
6.        Addressing each of the stated document categories in turn, Post would note the following additional information:
Passports
7.        DIMIA's experience is that it is rare to see a counterfeit passport prepared from scratch. More commonly, in its visa processing work DIMIA has encountered instances where people have obtained genuine passports from the Russian authorities using false identities, or have used another person's passport but substituted the photograph. In DIMIA's assessment, it is easy and inexpensive to obtain a new passport from the Government using a different identity. Government statistics show that misuse of stolen or missing passports is also common: in January 2004, the Interior Ministry announced that it had confiscated some 6,000 such passports in the course of its passport reform process (which has been ongoing over some four years).
8.        The Government is now taking steps to help stamp out internal passport fraud by announcing plans to introduce a unified national database of internal passports by 2004 (Note: internal passports enable travel in Russia and to most countries of the Former Soviet Union, but not abroad, where external passports are required). This was stated to be in response to the difficulties it has had in tracking stolen and missing passports, sham firms and other financial fraud. The Government considers that the planned introduction of better security features into the new internal passports should also assist in managing the problem.
9.        DIMIA has also encountered instances where fraudulent visas have been inserted into passports.
Medical documents
10.      In the course of its visa processing work DIMIA has encountered cases where false medical certificates have been produced. Most people agree it is easy to obtain a medical certificate from a doctor, for example, for the purposes of taking leave. Beyond this, it is difficult to assess how easy it is to obtain fraudulent medical documents. However, given that medical practitioners and medical personnel are, in general, not well-paid professions in Russia, it is possible that a document could be
procured either through a bribe and/or through a personal contact in the relevant institution…
Evidence to the Tribunal
The applicant told me that even after the third assault and all the telephone threats he received between 2011 and June 2013, he only intended up to that time to have a holiday in Australia, meeting his grandchild for the first time and then return to Russia. He said that his intentions changed after he received the visa [in] August 2013 because it was [later in] August 2013 was when he received the first of the three summonses. I put to the applicant that this seemed like a great coincidence and he said, “I don’t know.” He said that even after the March 2013 assault his intention had been to stay where he was because he loved Russia.
The applicant told me that he did not succeed in getting a referendum on the future of the local governor conducted in 2011. I questioned why, then, the police only summoned him in mid-2013 and he said in reply that the police might not have taken him very seriously back in 2011. He did not provide a plausible explanation as to why the police took so long to be concerned some two years later about a venture that had failed some two years earlier.
I expressed concern about how, after he evidently failed to comply with the first summons, and especially after he failed to comply with the second, forcing the police to issue a third, he kept receiving nothing more than what appeared to be an idle threat about prosecution under Article 118: there seemed to be no escalation of attention in the matter on the part of the police, and he was evidently never even charged under Article 118. At one point in the hearing, the applicant said that perhaps the summonses had continued to be delivered to his home, but later he said that these three were only summonses sent to him and, apparently, no further documents such as summonses or warrants from the police have been received. He did say that the police contacted his wife and his and her country house in October 2013. He suggested that this might have been because they could not find him at their usual residence in [City 1]. I put to him that in in view of the visit to the country house likely being very unsatisfactory for the police, it seemed odd that they had not escalated the matter and laid charges. The applicant insisted he had already been charged with offences under Articles 141(3) and 280(1) of the penal code. I asked him for evidence of that and he said the evidence is in the summonses where he was called to the police station to provide information.
A fair reading of the substance of the purported summonses does not suggest that the applicant has ever been charged. Meanwhile, in his protection visa application form he clearly stated that he was not at the time of that application the subject of any actual charges, but merely the subject of an investigation. I put to him that it seemed to be the wrong way round to be asked to attend a police station two days hence for questioning in a matter in which one has already been charged. It seemed odd in the claimed circumstances that he was merely warned over and over about possibly being charged under Article 188. It struck me as odd that much more serious action had not evidently been taken in and around August 2013, if not well before then, the claimed circumstances.
Later, addressing whether he had been charged or not, the applicant said that he went to an “expert in policing” [in] August 2013 and was told by that person that the summonses accused him of breaching the penal code “and that literally means I’m under arrest.” The interpreter also said he might have used the word “charges” when the more correct word might have been “accused’. It nevertheless stands that the third summons is the last item of supporting material suggesting any interest on the part of the Russian police towards the applicant, who claims to have ignored three summonses and breached Article 118 of the Russian penal code. There is no evidence of any further police attention let alone any escalation of the matter to charges since late 2013.
The applicant told me that ROT Front continues to operate in other parts of Russia and that as far as he knows only his local [City 1] branch has closed. He said he was not sure why it had closed because “I was not told” but suggested it might have been due to “our work”. Here he was referring to the intended referendum that, he said, never even happened. He said that only his local branch was non-parliamentary and that this might be why it was closed, but independent country information, and the applicant’s own testimony indicates that the ROT Front has always been a non-parliamentary movement throughout Russia.
He said that he and a number of other deputies worked under a supervisor. He said the others were specialised deputies, whereas he was not. He said he was unable to say what had happened to any of the other deputies or his supervisor because he had not stayed in contact with any of them. I asked him why he had lost contact with people who might be able to help him with information potentially useful to his case, and he said, “Why should I? [I am] no longer working [there].” I put to him that his more specialist colleagues might have been harassed or persecuted in his absence and he said this would not be the case as the office had closed. Here he did not impress me with a strong argument to the effect that he, let alone by himself, faced ongoing harassment over his own activities with ROT Front.
I asked the applicant why he would have been singled out amongst his supervisor and fellow deputies and he said that, back in the day, as it were, his senior made no public statements. The applicant said he himself used to recruit new members and distribute pamphlets. I asked him if his supervisor authorised the pamphlets and he said he did, although they were drafted by a “secretary”. The applicant acknowledged that his supervisor would in effect have been making public statements simply by virtue of authorising the Front’s pamphlets. I then put to the applicant it seemed odd that there was no suggestion in his evidence of his supervisor ever having been harassed by external parties such as the police or political opponents, and in reply he said that he, and not the supervisor, was the person organised the front’s local branch meetings and spoke at them. He did not appear, however, to be describing meetings that were other than internal ones, so his answer did not seem to explain adequately why he, seemingly alone at his branch, was the target of harassment by opponents of the ROT Front.
I asked the applicant to tell me when the referendum was intended to be held and he said this was not known. His evidence about his involvement in ROT Front struck me as being vague and improvised. The applicant said he did not realise the 2011 referendum project would fail to be realised until he was “charged” in “June 2013, which he wrongly identified as the date of the first summons. He then changed the date to “[date] August 2013” but, I note, that was not the date of the first summons either. His evidence here was confused and unresolved.
Meanwhile, the applicant told me his wife continues to live where she usually lives and continues to work in her profession as a [occupation].
S.424AA, s.438 and s.440(1) issues
At the second hearing, I disclosed two sets of potentially adverse information to the applicant under the protocols of s.424AA.
In the first instance, I disclosed to the applicant that I had before me evidence that he and his son gave to the Department and MRT in support of his Subclass 679 visa application. I put to him the following particulars: that he had a calm and peaceful life in Russia with his wife; that he had no trouble with the authorities there; and that his [son] was willing to guarantee that he had no desire to stay in Australia. I put to the applicant that this information was potentially relevant as it did not appear consistent with his protection visa claims. I put to the applicant that subject to comments and responses he might provide, this would be a reason or part of a reason for refusing his protection visa application. I gave the applicant the option of commenting and responding immediately or asking for more time, and he opted to comment and respond immediately.
Essentially, the applicant said that when he first planned to come to Australia he did not have any problems, suggesting in the process that as at the time of his visitor visa application in October 2012 he had not faced any relevant harassment. This does not sit with the evidence the applicant has given the Department and the tribunal about having received intermittent threats over the telephone starting in mid-2011. (See DIBP file at f.80.) The applicant also said that when the need for him to flee Russia first arose he had already received his sponsored family visitor visa in August 2013. He said he thought that all his problems had finished in June 2013, or at least by the time of his MRT hearing (by telephone) on 2 August 2013. This evidence clashes with the claims about the repeated assaults and hospitalisations he claims to have suffered in 2012 and 2013. The applicant did not say why he thought by 2 August that his problems were over and was able to overcome fear of his problems continuing. Whereas it is true that the date of the first purported summons is [in] August 2013, just [number] days after the applicant’s MRT interview, he had linked the alleged attack on him in his car in June 2013 with a subsequent telephone threat to the effect that he would be killed if he continued his political activities: in this light it is very difficult to accept that he would have considered his circumstances in Russia had significantly improved by [date] August 2013.
The second item of information put to the applicant under s.424AA was information, at ff. 109 to 116 of the DIBP file, that is subject to a s.438(1)(b) non-disclosure certificate. Essentially the Tribunal is required to issue a s.440(1) non-disclosure direction in order to be able to disclose it to the applicant. Issuing a s.440(1) direction to the applicant and his son enjoining them not to publish or disclose the information, deemed by the Department to have been communicated in confidence. The material under the certificate states that the applicant was [details deleted].
I put this information in a summarised form to the applicant under the auspices of s.424AA. The particulars I provided were sufficient for him to comprehend, as he later confirmed, that the allegations related to falsification of evidence on his and his son’s part. I put to the applicant that subject to comments and responses he might provide, this would be a reason or part of a reason for refusing his protection visa application. I gave the applicant the option of commenting and responding immediately or asking for more time, and he opted to comment and respond immediately.
The applicant told me he already knew of these allegations and expected to be asked to discuss them. He then proceeded to tell me that the allegations arose in the course of his being blackmailed by the informant who directly threatened to make these allegations if he did not take her side in her divorce proceedings against his son. He indicated that he considered the adverse information source to be his son’s former wife. I asked the applicant if his daughter-in-law had offered not to try and discredit him if he supported her, and he said she did not. He added that he had not been able to support her anyway.
I allowed the applicant’s son to make an oral submission in relation to this issue. He said his ex-wife had helped him compile the original visitor visa application for the applicant. He said he then later told her that his father “suddenly had troubles” in Russia and needed to stay longer in Australia. He appeared to indicate here that this circumstance arose after his father arrived in Australia. He said his wife then became scared. He said she then rented another house around the corner from their own. He said that she told him that his father must leave their house. He indicated that his wife forced them to move out. He said that his wife asked the applicant for money and that when he refused she made false claims about the protection visa application. I asked the applicant’s son if his wife would have come to know the nature and content of the applicant’s protection claims. He said in reply that he never hid the forms and documents at home. He said he thought his wife had seen them. The interpreter translated the son’s evidence into Russian for the benefit of the applicant.
I asked the applicant if he agreed with his son’s evidence and he said he did.
The applicant’s own comments and responses to this second body of information (including his confirmation and adoption of his son’s evidence) struck me as being somewhat far-fetched. Reviewing the evidence in this case in its entirety, I have also found there is an inconsistency between the applicant’s s.424AA comments/responses (again, including where he concurred with his son’s evidence) and his earlier claim to the delegate about his daughter-in-law already hearing about his persecution issues and moving out of the family home before he even arrived in Australia.
Findings in relation to s.36(2)(a) of the Act
I accept that the applicant is a married ethnic Russian retiree from [City 1]. I find that he has made no claims in relation to “race, religion, nationality, [or] membership of a particular social group”. I find that the applicant’s claims in this matter relate to “political opinion”.
The applicant’s claims about involvement in the ROT Front are somewhat inconsistent in that, whereas the purported membership card presented in evidence is dated September 2011, he claims to have joined the local branch of that front in 2010. He claims that by 2011 he was elevated at the branch to the role of “Co-ordinator” or organiser. Either way, his evidence about what he succeeded in organising externally is not impressive, given that his external activities such as the initiative to conduct a referendum were vaguely unsuccessful and that the main things he organised were internal branch meetings. Meanwhile, it strikes me as incongruous that the applicant’s fellow co-ordinators and their common branch leader did not evidently suffer any of the same threats or actual harm that he claims to have faced. It also strikes me as incongruous that after purportedly instigating a move to hold a referendum in 2011, he did not meet with harassment from the police (the summonses) until August 2013, up till them purportedly having some faith in the police to investigate his “unknown” harassers and assailants. In the claimed circumstances, I find the suggestion that the police did not take him seriously until 2013 to be a fanciful one, as he has provided no detailed account for anything he was doing in 2012 or 2013 to keep the referendum or any other ROT Front initiative alive, apart from the conduct of internal branch meetings, and, as noted, persons in similar or higher positions in the party, all of them evidently having similar or greater roles of responsibility, were not being harmed. The information the applicant gave about the fate of the referendum and yet why the police pressure arose seemingly out of nowhere is vague and unsatisfactory.

Meanwhile, the evidence about the applicant receiving threatening telephone calls in 2011, throughout 2012 and into 2013, does not sit with how little he seemed to be achieving with the purported referendum, which he claimed was his, and the ROT Front’s, major external political initiative at the time. In addition, the claims about these threatening calls does not sit with the evidence given to the Department in the visitor visa application about the applicant having no problems in Russia at the time of that application (late 2012). On the evidence before me, it is very hard to accept that the applicant received threatening telephone calls in relation to his claimed work with the ROT Front.
On the material before me I find that the applicant’s evidence as to why his branch of the ROT Front was forced or felt obliged to close, as far as he knows, whilst others have continued to operate throughout Russia was vague and unsatisfactory. The difference he drew between his ROT Front branch and others struck me as a spurious and unreliable one, because the Front reportedly does not have “parliamentary” branches or members anywhere in Russia.
In some of his evidence, the applicant said that it was his own personal role in trying to make the referendum happen that made him a target, setting him apart from others in his branch and perhaps also setting his branch apart from other branches, but his vagueness about the referendum and also his vagueness as to how and why it did not happen leaves me dissatisfied as to how and why he would have been singled out and his branch later forced to close.
Having considered cumulatively all of the evidence and issues discussed in the preceding three paragraphs, I find it very difficult to accept that the applicant had any potentially significant relationship with the ROT Front, actual or imputed, notwithstanding the title of “Co[-]ordinator” that appears on the purported 2011 membership card made out in his name.
The applicant alleges a sinister link between the local governor, local thugs and the local police that saw him frequently threatened, assaulted and later falsely charged. Relevant to these claims, I have serious concerns about various inconsistencies between the content of the purported police reports and the oral evidence the applicant provided. In particular the purported dates of the written reports precede the dates on which the applicant supposedly reported orally to the police. Whereas the events described in the reports can reasonably be regarded as being internally plausible, as any short summary of a mugging or assault episode might seem, but the problems as to when these reports were written down raises significant concerns as to their reliability. I have considered this inconsistency problem alongside evidence to the effect that falsified documents are easy to obtain in Russia.
I have serious concerns as to the authenticity of the alleged police summonses as each of them, in particular the first two, indicate serious action that could ensue if the summoned person does not report as required. The situation whereby the summonses keep being reissued without any foreshadowed action being taken strikes me as somewhat implausible in the claimed circumstances. I find an air of unreality surrounds the purported summonses. Meanwhile, the applicant did not provide an even remotely satisfactory explanation as to why the local police commenced this summoning action against him so long after he purportedly embarked on the referendum initiative (in 2011) and so long after he himself purportedly drew to their attention (in 2012 and 2013) to controversy around his so-called political activities, by way, he claimed, of his own hospital bedside-reports to them. Relevant to these concerns, I have also had regard to independent evidence to the effect that falsified documents are easy to obtain in Russia.
I find a significant inconsistency in the applicant’s position, at hearing, to the effect that he did not feel that he was really in trouble in Russia until he received the first summons, three days after being granted his visitor visa for Australia in August 2013. I find this particularly inconsistent with his claim to the effect that he suffered politically-motivated threats and later reported three instances of political persecution to the police by June 2013.
All of the evidentiary issues discussed above lead me cumulatively to conclude that the three summonses and the reports to police are false documents and that the applicant was not facing and does not face relevant harm for reasons of any actual or imputed political opinion or affiliations. His use of false documents in this case, and his vagueness and contradictory information about his branch’s leadership gives me strong reason to doubt that he was even a member of the ROT Front, but even if he was, and even if the local ROT Front branch called him “Co[-]ordinator” as shown on the purported membership card, I am not satisfied he had any potentially significant role with the branch. I am not satisfied on the evidence before me that the applicant played any significant role in any planned or mooted referendum, or that he played any potentially significant role in political pamphlet production or distribution. I am not satisfied on the evidence before me that the applicant sustained harassment in Russia in the form of threats, assaults, summonses, charges or other police action, or any other activity from any quarter. In view of the many deficiencies in the applicant’s evidence, I give no weight at all to the purported medical certificates, and I am not satisfied that the applicant was ever hospitalised as claimed.
In my consideration of the evidence in this matter, I have entirely been able to set to one side the allegations of the informant whose remarks are found at ff.109 to 116 of the Department’s file; and I do so. It is not at all necessary to rely on those allegations in order to make the findings already made above, and I have not relied on them. It was important, with s.425 of the Act in mind, that I gave the applicant an opportunity to discuss the allegations against him, as it would be procedurally unfair not to do so. However, I make no findings as to the authority or impartiality of the informant, or as to reliability of the informant’s many allegations. Whereas the allegation about the applicant’s son using [certain] contacts to obtain blank forms might seem persuasive, evidence of his former profession was raised directly with me and also in the visitor visa application which I disclosed to the applicant for comments and responses under s.424AA of the Act. In any event, it is not necessary for me to make a positive finding as to how the documents were produced. It is sufficient to find that a number of factual inconsistencies, all sourced to the applicant, lead me not to rely on them. Ultimately, the applicant’s claims fail in this case due to the many contradictions and deficiencies in his own evidence.
Having considered all of the evidence presented by the applicant and his son, I am not satisfied that he faces a real chance of persecution in Russia in the reasonably foreseeable future for reasons of “political opinion” or any other Convention-related reason. His claimed fear of Convention-related persecution in Russia is not well founded. He is not a refugee.
For the reasons given above, I am 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).
Findings in relation to s.36(2)(aa) of the Act
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa).
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.
Relevantly, s.36(2)(aa) refers to a "real risk" of an applicant suffering significant harm. The "real risk" test imposes the same standard as the "real chance" test applicable to the assessment of "well-founded fear" in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.
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.
In this case, all of the applicant’s claims to complementary protection are the same claims he has presented for consideration under s.36(2)(a). In light of his claims to protection as a refugee having failed for want of credibility and for want of meeting the “real chance” test, they can no more succeed as complementary protection claims.
Having considered all of the evidence in its entirety, I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Russia, there is a real risk that the applicant will suffer significant harm. Accordingly, I am not satisfied that he is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Other findings
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
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Luke Hardy
Member
ATTACHMENT A
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.
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.
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’).
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.

[2018] AATA 917

7 March 2018

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Jurisdiction

Standing