1607017 (Refugee) - [2018] AATA 4371

1607017 (Refugee) [2018] AATA 4371 (3 September 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1607017
COUNTRY OF REFERENCE:                  Russian Federation
MEMBER:Brendan Darcy
DATE:3 September 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s.36(2)(a) of the Migration Act 1958; and
(ii)that the other applicants satisfy s.36(2)(b)(i) of the Migration Act 1958, on the basis of membership of the same family unit as the first named applicant.

Statement made on 03 September 2018 at 4:16pm
CATCHWORDS
REFUGEE – Protection visa – Russian Federation – Ethnicity – Azar – Religion – Evangelical Christian convert – Apostasy from Sunni Islam – Social group – Sole parent with young children – Attended underground Chistian gatherings – Fears harm from Muslim fundamentalists – Fear of physical assault and death from her family – Societal discrimination – Decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5, 5CA, 36, 65, 91R, 91S, 499
Migration Regulations 1994 (Cth), rr 1.03, 1.12, Schedule 2

CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220
MZYLH v Minister for Immigration & Anor [2011] FMCA 888
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
SZATV v Minister for Immigration and Citizenship [2007] HCA 40
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 and Border Protection to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, who claim to be citizens of Russian Federation, applied for the visas on 3 June 2014 and the delegate refused to grant the visas on 11 May 2016.
In this decision, the first named applicant [is] to be referred to as the first applicant; the second named applicant [as] the second applicant or the first applicant’s daughter; and the third named [applicant] as the third applicant or the first applicant’s son.
The first named applicants appeared before the Tribunal on 21 August 2018 to give evidence and present arguments. The second named and third named applicant, as minors of primary school age, were not required to give evidence and present arguments.
The applicants were represented in relation to the review by their registered migration agent.
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 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.
Member of the same family unit
Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include dependent minor children.
CONSIDERATION OF CLAIMS AND EVIDENCE
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Background
Copies of the applicants’ expired Russian passport is on the applicants’ departmental file ([File number]).[1]
[1] [File number] Folio 77-122
The first applicant claimed she was born [in date] in Makhachkala in the Republic of Dagestan and that she is a citizen of the Russian Federation. She claimed to be born [another name] and that she changed her name when she married an ethnic Russian, [Mr A], in 2002.
The first applicant claimed to be married [in] 2002 to [Mr A], a Russian [national], while residing in Krasnadar in Russia.
The first applicant claimed to be ethnic Avar; that she can speak, read and write Avar and Russian and that she belonged to a Sunni Muslim family. Critically, she claimed to be a convert to evangelical Christianity.
The first applicant claimed she was raised and tertiary educated in Dagestan, before moving to Krasnadar in Krasnadoar Krai (North Caucusus) in 2001; and then to Kazan in Russian Republic of Tartarstan in 2004, before moving to Australia.
The first applicant further claimed to have travelled to a number of countries in Central Asia and the Middle Eastern as well as [Country 1] before departing to Australia.
The first applicant and her husband both arrived in Australia on 12 January 2009 while holding student visas for higher education studies. The first applicant was the secondary visa holder.
Subsequent student visas were granted to them both on 23 March 2011 for the first applicants’ husband’s postgraduate studies. Further student visas were granted on 15 April 2013 for the same purpose.
The first applicant arrived in Australia on 2008 as a secondary visa holder of her husband’s student visa. The purpose of the applicant’s student visa was for the applicant’s then husband to study at a theological college for evangelical Christians.
On the departmental file is a copy of the third applicants’ birth certificate indicating that he was born [in date] in [Australia] to the first applicant and [Mr A], born in Russia.[2]
[2] [File number] Folio 124.
On the departmental file is a copy of the second applicants’ birth certificate indicating that she was born on [date] in [Australia] to the first applicant and [Mr A], born in Russia.[3] The second applicant was first granted a student visa as a dependent on 23 March 2011 and was granted a further two other student visas. She departed Australia between 12 July 2014 and 28 July 2014.
[3] [File number] Folio 123.
On the departmental file is a copy of the third applicants’ birth certificate indicating that he was born on [date] in [Australia] to the first applicant and [Mr A], born in Russia.[4] The third applicant was first granted a student visa as a dependent on 23 November 2012 and was subsequently granted a further student visa. The third applicant has never departed Australia.
[4] [File number] Folio 124.
As both the second and third applicants were born in Australia to temporary visa holders, they were not automatically eligible for permanent residency or citizenship.
The applicants applied for class XA subclass 866 onshore protection visas on 3 June 2014. The first applicant has never been an unlawful non-citizen while in Australia and has not departed Australia since the first applicant’s arrival.
Written Claims
The applicants provided written claims to the Department of Immigration and Border Protection (now Home Affairs) which are on the departmental file [number].[5] The first applicant also attended a departmental interview on 22 April 2016 to provide oral evidence on behalf of the other applicants. Below is a summary of those claims:
[5] [File number] Folio 37-44.
·The first applicant was born in Dagestan, which is a Muslim Republic within Russia. She arrived in Australia on 12 January 2009 with her husband, from whom she is now separated. She has two children born in Australia (the other applicants);
·The first applicant is seeking protection because she fears harm at the hands of her family, primarily because she converted to Christianity. She also fears harm at the hands of Muslim fundamentalists in the Caucasus and Central Asia;
·The first applicant was brought up in a conservative and strict Muslim family and are also anti-Russian;
·The first applicant’s ethnic group — the Avar - have been known to be strict and traditional adherents of Islam.
·She began studying at [University] in [year] and met Christians for the first time in the first year of university. There were [a number of] American lecturers at university who were Christians. These lecturers were very open about their religion and invited students to their homes to talk about Christianity. She heard Christian songs and was drawn to them. The lecturers seemed joyful and happy in their religion and relationship with God which is something she had not experienced as a Muslim.
·One Saturday evening in around 1996, she spoke to Allah and apologised for socialising with Christians. She was preparing to pray when she felt a light presence and started to shake. She heard a voice saying "I am Jesus, I am Jesus". She started to pray in Arabic but the presence of Jesus was so strong it would not go away. She finished her ablutions and went to her prayer mat where she felt the presence again. After this, she was confused. The next day, she felt that she had to go to the Christian lecturers and ask them about Jesus. She told them what happened and burst into tears. After talking to the lecturers, she was convinced that she should be a Christian and Jesus is God.
·She told her sisters about her new faith. She felt excited and was a bit naïve because she did not consider their reaction. Her sisters tried to convince her to return to Islam. When she refused, [one] sister [threatened] to tell her parents;
·For four years her [sisters] would beat and manipulate her, threatening to tell her parents that she had become a Christian. Eventually, [her sister] told her parents. Her parents told her to stop being Christian. At the end of the conversation, they told her that they "do not need [her] anymore". This made her feel threatened and fearful about what they would do to her. She was so scared that she lied and told them that she was not a Christian;
·In about 1998 one of the Church leaders, an American lecturer, was kidnapped by radical Muslim Dagestanis and sent to Chechnya. After the incident, the Russian authorities asked the other American lecturers to leave as the authorities could not protect them. She continued her church meetings in secret but without the Americans.
·She struggled with the lie she told her^-parents but was fearful to tell them the truth. After a period of reflection and prayers she wrote her beliefs and how she felt in a letter, because she wanted to share this with her parents. She left the letter with [another] sister, [Ms B], and told her to give it to her parents. She was scared to leave home but looked to the bible for support;
·Then, she went to the Russian city of Krasnodar. She found a Christian college community and asked them for help. She was constantly fearful that her parents or other family members would find her and harm her so she moved around frequently.
·While in Krasnodar she became friends with [Mr A]. They eventually got married. [Mr A] was a Russian man who had grown up in Dagestan and later moved to Krasnodar.
·In 2001, she began studying at [an education institute]. [Mr A] was already a student at that institute. After completing their studies, they moved to Kazan. She worked for [a workplace] as [an occupation]. This work involved helping and encouraging Christian women from Central Asia and Caucasus, who had come from Muslim background.
·In January 2009, the first applicant came to Australia with her husband who came to study [a theology course]. Since arriving in Australia, the first applicant continued to practise her religion;
·While in Australia, the first applicant kept in contact with [Ms B] who has since become a Christian (but has kept this secret from their family). Through [Ms B], the first applicant heard about how the situation in Russia has been deteriorating, particularly in Dagestan. Radical Islam is growing and even within her extended family, a few men have started following and practicing Wahhabi Islam;
·It is further claimed that [Ms B] attended an undercover Evangelical Church in Dagestan with her husband. The minister of the Church, an Avar, was killed by local Muslim fundamentalists while his Russian wife and four children were spared. Since this event, [Ms B] and her husband have stopped going to church for fear that they could also be harmed; and
·The first applicant claimed to fear serious harm including physical assault and death at the hands of her family because she is an Evangelical Christian convert. The Russian authorities would not be able to protect her. She cannot reasonably relocate anywhere in the Russian Federation to avoid the threat of harm.

Also on departmental file was an email dated 11 April 2015 from [a doctor], claiming to be an evangelical Christian pastor who knew the first applicant since she resided in Dagestan where she was baptised and Krasnodar where she and her husband were trainees at [a] [an institute] and in Kazan as ‘churchplanters’ or missionaries.
Evidence before Hearing
On 14 August 2018, the applicants’ representative submitted an extensive legal submission arguing that the applicants seek protection due to the first applicant’s conversion to evangelical Christianity; that the authorities will not protect her; that the applicants cannot relocate anywhere within the Russian Federation; and that the applicants will face discrimination from ethnic Russians due to their Avar ethnicity. Attached to the legal submission was the US State Department’s 2017 religious freedom report on Russia; a 2016 International Center for Not for Profit Law’s review of recent Russian laws designed to counteract terrorism and ‘extremism’; and country information about the corruption and abuses of accessing and using propiska, Russia’s internal residency registration scheme. [6]
[6] AAT Folio 84-105
On 17 August 2018, the applicants’ representative submitted her résumé outlining her religious works and education; a further letter of support from the second and third applicants’ school; and a statutory declaration confirming that the first applicant understood the submissions prepared on her and her children’s behalves.
On 21 August 2018, the applicants’ representative also submitted a report from a psychologist (also a general practitioner) who had been treating the first applicant since January 2015 outlining that the first applicant presented with symptoms of severe depression arising from ‘a very difficult childhood’ where intergeneration trauma and abusive was apparent.[7]
[7] AAT Folio 114
No further submissions were required in this review application.
Country Information: Russian Federation
Religious Freedom
The 2017 US State Department report on religious freedom states the following[8]:
[8] International Religious Freedom Report for 2017 United States Department of State • Bureau of Democracy, Human Rights, and Labor
Executive Summary
The constitution provides for freedom of religion, equal rights irrespective of religious belief, and the rights to worship and profess one’s religion. The law states government officials may prohibit the activity of a religious association for violating public order or engaging in “extremist activity.” The law lists Christianity, Islam, Judaism, and Buddhism as the country’s four “traditional” religions and recognizes the special role of the Russian Orthodox Church (ROC). The law distinguishes between “religious groups,” which have the right to conduct worship services but may not engage in many other activities, and two categories of “religious organizations,” which obtain legal status through registration with the government to conduct a full range of religious and civil functions. The Supreme Court ruled to criminalize the activity of Jehovah’s Witnesses as “extremist,” effectively banning their activities and literature, and ordered their headquarters property to be liquidated. Authorities continued to detain and fine members of minority religious groups and minority religious organizations for alleged extremism. In one case, there were reports that authorities tortured an individual in a pretrial detention facility. Authorities convicted and fined several individuals for “public speech offensive to religious believers.” The government prosecuted individuals of many denominations for unauthorized missionary activity under the amendments to antiterrorism laws passed in 2016, known as the Yarovaya Package. Police conducted raids on the private homes and places of worship of religious minorities. Religious minorities said local authorities used the country’s anti-extremism laws to add to the list of banned religious texts. Local officials continued to prevent minority religious organizations from obtaining land and denied them construction permits for houses of worship. There were reports of Jehovah’s Witnesses facing discrimination from school officials following the organization’s ban. The government continued to grant privileges to the ROC not accorded to any other church or religious association, including the right to review draft legislation and greater access to public institutions. The government increasingly fined and issued deportation orders for foreign nationals engaging in religious activity, including a rabbi, four Korean citizen Baptists, and an Indian citizen Pentecostal pastor.
Media, nongovernmental organizations (NGOs), and religious groups reported a number of attacks on individuals based on their religious identity. There were physical assaults on Jehovah’s Witnesses and Muslims, as well as other attacks on individuals, possibly based on both their ethnicity and religion. NGOs reported
Section I. Religious Demography
The U.S. government estimates the population at 142.2 million (July 2017 estimate). The most recent figures from a 2015-2016 poll by the Pew Research Center report 71 percent of the population consider themselves Orthodox, while 10 percent identify as Muslim. Religious groups constituting less than 5 percent of the population each include Buddhists, Protestants, Roman Catholics, Jews, members of The Church of Christ of Latter-day Saints (Mormons), Jehovah’s Witnesses, Hindus, Bahais, members of the International Society of Krishna Consciousness (ISKCON), pagans, Tengrists, Scientologists, and Falun Gong adherents. The 2010 census estimates the number of Jews at 150,000; however, the president of the Federation of Jewish Communities (FEOR) stated in February 2015 the actual Jewish population is nearly one million, most of whom live in Moscow and St. Petersburg. Immigrants and migrant workers from Central Asia are mostly Muslim. The majority of Muslims live in the Volga Ural region and the North Caucasus. Moscow, St. Petersburg, and parts of Siberia also have sizable Muslim populations.
Republic of Dagestan
The Republic of Dagestan (Dagestan) is a federated republic within the Russian Federation, located in the North Caucasus region. Its capital and largest city is Makhachkala, located at the center of Dagestan on the Caspian Sea coast.
With a population of about three million, Dagestan is very ethnically diverse and Russia's most heterogeneous republic, with none of its several dozen ethnicities and subgroups forming a majority and the largest one constituting less than 30% of the population. Largest among the ethnicities are the Avar, Dargin, Kumyk, Lezgian, Laks, Azerbaijani, Tabasaran, and Chechen. Ethnic Russians comprise about 3.6% of Dagestan's total population. Russian is the primary official language and the lingua franca among the ethnicities. [9]
[9] Dalby, Andrew (2004). Dictionary of Languages: The Definitive Reference to More Than 400 Languages. Columbia University Press. p. 59. ISBN 0231115695.
According to a 2012 survey,[10] 83% of the population of Dagestan adheres to Islam, 2.4% to the Russian Orthodox Church, 2% to Caucasian folk religion and other native faiths, 1% are non-denominational Christians. In addition, 9% of the population declares to be "spiritual but not religious", 2% is atheist and 0.6% follows other religions or did not answer the question. Dagestanis are largely Sunni Muslims, of the Shafii rites, that has been in place for centuries.
[10] Arena: Atlas of Religions and Nationalities in Russia". Sreda, 2012.
The conquest of the North Caucasus, including Dagestan, by Russia has been ongoing for over two centuries, beginning in the 19th century with the Caucasian War of 1817-1864. In Chechnya and Dagestan, resistance to Russian colonisation was organised by members of the Murid Islamic religious order, the Naqshbandi Tariqa, whose Sheikh, and spiritual leader of the famous Imam Shamil, was the no less famous and respected Muhammad Yaragsky. After the end of the Caucasus War, Russia put down several bloody uprisings. After the Civil War (1917 -1923), in which Caucasus people fought for both the Reds and the Whites, the Soviets began a systematic extermination of the regional intelligentsia, Islamic clergy and wealthy families as part of the repressions and collectivisation of the 1920s and 1930s. These actions by the Soviet authorities were accompanied by firstly, organised uprisings and later, sporadic action by small partisan groups whose resistance continued right up to the Second World War and was gradually replaced by robbing the local population and state establishments. The Second World War carried off half the male population of some mountain villages, most of whom were called up and dispatched to the front. In 1944, Chechens, Ingush, Balkars and Karachay, most of them women, children and the elderly, were deported to Central Asia; they were only able to return in 1957.[11]
[11] Will the war in Russia’s North Causcuas’ ever end? by Denis Sokolov, Open Democracy, 28 August 2018, >
The 1999 War of Dagestan began when the Chechnya-based Islamic International Peacekeeping Brigade (IIPB), an Islamist group, led by warlords Shamil Basayev and Ibn al-Khattab, invaded the neighboring Russian republic of Dagestan, on 7 August 1999, in support of the Shura of Dagestan separatist rebels. The war ended with a major victory for the Russian Federation and Dagestan Republic, and the retreat of the IIPB. The Invasion of Dagestan was the casus belli for the Second Chechen War.[12]
[12] War of Dagestan, Wikipedia, >
The International Crisis Group 2008[13] summary stated that the Russian Republic of Dagestan has avoided large-scale violence despite its proximity to Chechnya but has been now suffering from escalating street warfare. Several hundred local and federal security forces, administrators, politicians, ministers and journalists have been killed since 2003. The militant Islamist organisation Shariat Jamaat is responsible for much of the violence. Some of its leaders fought in Chechnya, but its extremist propaganda is also attracting unemployed Dagestani youth. This home-grown extremism, espousing jihadi theology and employing terrorist methods, is a new phenomenon. Police efforts to end the street war have been ineffective and in some instances counter-productive. While supporting loyal local elites, Moscow can help halt the increase in violence if it implements an efficient anti-corruption policy and reintegrates youth into the economic and political system.
[13] Russia’s Dagestan: Conflict Causes, Report No 192, 3 June 2008,>
In July 2018, the International Crisis Group[14] stated that for the past decade, Dagestan has been the epicentre of jihadist violence in the North Caucasus. At its peak in 2011, the conflict between insurgents and Dagestani security forces claimed over 400 lives in the republic alone – well over the number of those killed in all the other North Caucasus republics combined, according to figures from Kavkazsky Uzel, a news site founded by the Memorial human rights society. Since 2014, however, as authorities have reverted to repression, Salafis have largely been targeted for harassment. The main punitive instrument is the interior ministry’s profuchet, or register of suspected extremists (profuchet is short for “prophylactic register”). As of March 2016, it listed more than 15,000 people, including details of their personal lives and family nicknames. The criteria for listing are classified and regulated by interior ministry orders.
[14] Dagestan’s Abandoned Counter-insurgency Experiment, Commentary, International Crisis Group, 5 July 2018, >
In February 2018, the acting head of the southern Russian republic of Dagestan has ordered the dismissal of the whole regional cabinet, after its former chairman and his deputies were held on charges of embezzling millions of roubles of state funds. As part of the move, acting head of Dagestan Vladimir Vasiliyev also appointed Anatoly Karibov as the republic’s new prime minister, and ordered ministers to continue to work as normal until the new cabinet is formed.
ASSESSMENT OF CLAIMS AND FINDINGS
Country of reference
The applicants claimed to be citizens of the Russian Federation (Russia). They provided a copy of the first applicant’s expired passport to the Department. They also provided the Tribunal with a copy of the first applicant’s recently issued valid passport during the scheduled hearing. They also provided copies of the second and third applicants’ birth certificates indicating that these applicants were born in Australia to parents who were Russian citizens who did not hold Australian citizenship or permanent residency and were therefore not entitled to Australian citizenship by birth.
With no evidence to the contrary, the Tribunal finds that each of the applicants are citizens of the Russian Federation, that the Russia is the applicants’ country of nationality for the purposes of the Refugees Convention, and that the Russian Federation is their receiving country for the purposes of complementary protection.
Membership of the Same Family Unit
It is argued that the first applicant is the biological mother of the second and third applicants. The applicants have provided Australian issued birth certificates to support this claim. At the time of making this decision the second and third applicants were born in Australia and were of primary school age.
If the first applicant is the biological mother of the other applicants, then the other applicants may be eligible to satisfy s.36(2)(b) or (c) because they are members of the same family unit as the first applicant.
Based on the evidence before it and with no evidence to the contrary, the Tribunal is satisfied the second and third applicants satisfy the definition of “dependent child” under r.1.03 as they are not yet 18 and because under r.1.12(4)(b) the second and third applicants are a person who are dependent children of the family head, namely the first applicant, as she satisfy s.5CA(1).[15]
[15] The parent-child definitions are also partly related to the definition of child in family law. ‘Parent’ is defined in the Migration Act to include a person who is a parent of a ‘child’ as defined in s 5CA. Section 5CA(1)(a) says that a person is the child of another if the person is a child within the meaning of the Family Law Act 1975, with the exception of a child who is adopted within the meaning of the FLA.
Accordingly the Tribunal is satisfied that the second and third applicants are members of the same family unit as the first applicant and may be eligible to satisfy s.36(2)(b) or (c).
Accepted Circumstances
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicants but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.)
In this case, the first applicant provided overwhelmingly consistent and detailed written and oral evidence to both the Department and the Tribunal. Her oral testimony during the scheduled hearing, provided in English, was extemporaneous and unprompted. Based on the strong quality of the first applicant’s convincing evidence, it is accepted that the first applicant was a reliable and credible witness. Furthermore there is insufficient evidence to doubt the genuineness of the applicant’s documentary evidence, including reference letters about her religious affiliation to local churches.
Accordingly the Tribunal accepts the following aspects about the applicants:
It is accepted that the first applicant was born in the capital city of Dagestan in [year], as claimed; that she is an Avar by ethnicity; that she was educated in Dagestan before departing for Krasnodar. It is also accepted that and that she can speak, read and write in Russian and Avar.
It is accepted that the first applicant was raised in a conservative Sunni Muslim family in a rural village. The applicant also claimed her parents continue to reside in Dagestan where her four adult sisters (and no brothers) as biological siblings, also reside. The applicant claimed that her father was now retired but had been [an occupation].
The first applicant submitted a psychological report which convincingly elaborated that her mother had difficulties in being nurturing and supportive and was often volatile and even violent and was from the age of [age] raised by her maternal grandmother and maternal uncle and his wife. At the age of [age], the first applicant was required to return to live with her parents when her aunt passed away. The Tribunal accepts this to be the case.
The applicant claimed that she obtained a [degree] and qualified to be [an occupation] as a graduate of [a] University; then she attended a [college] in Krasnador; and then latter [worked] at [a workplace] in Kazan. The Tribunal accepts this to be the case.
It is accepted that the first applicant married a fellow Russian national of Russian ethnicity in 2002, with whom she has had two children who are also the other review applicants in this application for review, since their arrival in Australia. The first applicant, it is further accepted, is currently separated from her husband around 2013 and that she is seeking to formally divorce.
It is further accepted the applicant departed Russia to a number of Central Asian, Middle Eastern countries as well as [Country 1], on numerous short term trips before returning to Russia and then departing Australia, as claimed, for the purposes of religious education and evangelising Christianity.
It is accepted that the first applicant arrived in Australia in 2009 while holding a dependent student visa and has held further student visas until she separated from her Russian national husband.
It is accepted that the second and third applicants belong to a mixed Avar and Russian heritage; that since the first applicant’s separation from her Russian husband that their biological mother has become their primary care provider and that their biological father continues to have an ongoing relationship with his children, as claimed. It is also accepted that the applicants have never visited their country of nationality and have only experienced formal Australian educational setting and that the second and third applicants are conscientiously raised by their mother as practicing members of an evangelical Christian movement.
Apostasy from Islam and Conversion to Evangelical Christianity
It is claimed by the first applicant that she has a well-founded fear of persecution for the essential and significant reason arising from her apostasy from Sunni Islam in favour of evangelical Christianity.

Based on the Tribunal’s favourable finding that the applicant is a credible and reliable witness, it is accepted that the applicant did convert from Sunni Islam to Christianity, as claimed. It is accepted that this conversion occurred in 1996 when she was drawn to the underground evangelical Christian movement as an undergraduate at a university in Makhachkala and that this was the beginning of many years in studying at evangelical colleges and proselytising or ‘church planting’ as an evangelical Christian missionary, as consistently outlined her claims. Based on the email provided by [the doctor], it is accepted that the first applicant was attended underground Christian gatherings and was baptised as Christian while at Makhachkala.
It is accepted that some of the first applicant’s sisters did not welcome the news that her conversion to Christianity and that some of her sisters threatened to inform her parents over a period of four years. It is accepted that that one her sisters informed the first applicant’s parents about her conversion and that she was told by her parents that ‘they did not need her anymore’ if she had abandoned Islam and that the first applicant denied her conversion. The tribunal also accepts the applicant revealed her conversion to her Muslim parents when she left a letter with her sister, [Ms B], just prior to the first applicant’s departure to Krasnadar, and that this meant the applicant would be permanently ostracised from her family Dagestan.
It is further accepted that she married her husband in Krasnodar in 2002 who was also an evangelical Christian. The Tribunal accepts the applicant does not identify with one particular evangelical church but shares a commitment to developing a personal relationship with Jesus Christ through scripture and common worship in common with Protestant denominations such as the Baptist and Pentecostal movements.
At the time of writing this decision, the Tribunal finds that the applicant has maintained her zeal for spreading the Christian gospel in the tradition of evangelical Christianity.
During the hearing, the applicant was asked to the reasons there appeared to be a considerable delay in applying for protection visas in 2014 when she and her husband arrived in 2009 and this may invite the Tribunal to consider at least the urgency and depth of the first applicant’s fears of persecution. The applicant claimed that the triggering event for applying for protection visas had been her relationship breakdown with her husband as it would have been considerable more difficult and impracticable to remain outside of Dagestan without the legal permission through her Russian husband’s propiska, She also feared the societal discrimination towards her based on her North Caucasus ethnicity would lead the authorities to enforcing her to return to the Republic of Dagestan or that, if she were able to relocate outside of Dagestan, that it would be unreasonable, in the sense of being impracticable, as her status as a sole parent of two young children would exacerbate her already challenging circumstances as an Avar and an evangelical Christian. Based on the first applicant’s overall credibility, the Tribunal accepts these explanations. It further finds the first applicant did have genuine and urgent subjectively-held fears of persecution for these claimed reasons arising from her marriage breakdown, if she and the other applicants were to return to their country of nationality, at the time of application.
Well-Founded Fear of Persecution if Returned to Dagestan
It is accepted the applicant is an apostate from Islam to Christianity and that she has personally held fears of persecution based on her religion if she and the other applicants were to return to her home area of Dagestan within the Russian Federation, in the foreseeable future.
In assessing the available country information and the applicants’ personal circumstances, the Tribunal assesses that the first applicant will be subjected to ongoing harassment and significant physical ill-treatment whereby her apostasy from Islam to evangelical Christianity , and her proselytization, will attract the adverse attention of Salafists, traditional Sunnis hostile and/or members of her family.
The Tribunal does not accept there is sufficient internal protection within Dagestan by the authorities of the Russian State to protect the applicant.
For many years now, the foreign and native Christians, both Orthodox and non-Orthodox, have been kidnapped and even killed by Sunnis. A notable example of apostates from Islam or Avar converts to Christianity that have been seriously harmed include the 2010 kidnapping of Pastor Artur Suleimanov, who founded an evangelical church in Dagestan in 1994.
The Russian state has had some military success since 1999 War of Dagestan against separatism and radical Islam; however it has failed to implement a safe or corruption free environment. Islamic radicals find Dagestan a fertile recruitment ground due poverty and ethnic grievances. A recent report by the Soufan Group, a US-based security research firm, estimated that 3,417 fighters from Russia had joined the Islamic State’s ranks in Syria and Iraq, with the majority of recruits coming from the North Caucasus.[16] Muslim Dagestanis have historically seen Russians and Christians as foreign occupiers in a predominately Muslim nation.
[16] Isis claims responsibility for gun attack in Russia’s Dagestan region, The Irish Times, 19 February 2018, >
Therefore it is not surprising, according to the Jerusalem Post in 2016, the video has been released by the Northern Caucasus branch of ISIS across social media channels has called for the implementation of Islamic law and to “target the apostates wherever they are, using a rope or a knife” and shows a Russian news report about a car bombing in the Dagestan province last month that killed two police officers.[17]
[17] ‘Isis calls on millions of Muslims to kill ‘Russian apostates’ and promises to attack Vladimir Putin’, The Independent (UK), 7 March 2016, >
Given the country information from the US Department of State that describes Dagestan as remaining the most violent area in the North Caucasus and accounted for approximately 32 per cent of all causalities in the region during 2017, it is not unreasonable to assess that the applicants would be returning to an area where religious-motivated violence is prevalent and indifferent to the authority of the Russian state. It is also accepted there are past and recent incidents of honour killings and other religiously motivated harm towards Christians , Orthodox and evangelical, - and other non-Muslims - do occur, and that it does so in the context where killings, abductions and incidents of torture by government personnel, militants and criminal elements is prevalent across the North Caucasus.
Conservative and/radical Muslims can act with impunity against religious minorities in Dagestan, including those who the protection of the Russian state such as Orthodox Christians. As recent as February 2018, five Orthodox Christians were killed by gunfire in Dagestan by a group claiming to be affiliated with the Islamic State terrorist network. As reported in the August 2018 Open Democracy report cited above, people from the North Caucasus are much less trusting of the Russian judicial system than most other Russians and so often attempt to resolve conflicts among themselves, de facto refusing to recognise the Russian legal system’s monopoly on violence. The hermetic nature of Caucasus communities leads to the legal side of life in village society being governed by common or Shariat law and implemented collectively. This can mean factional fights using knives or guns. In city, migrant or business networks “professionals” – guerrilla leaders, private army warlords or criminal bosses – are brought in to act as muscle.[18]
On 16 August 2017, Open Democracy also published an article called ‘Honour killings’ in Russia’s North Caucasus.[19] The article outlines that the Shariatisation of violence in Dagestan and other North Caucasus republics. Below is an extract:
“Honour killings” don’t happen spontaneously — these crimes are planned by members of the women’s families in advance, says Svetlana Anokhina, editor-in-chief of Daptar.ru, a website devoted to women’s rights in Dagestan: “As a rule, the decision is taken by the family together and more than one person is involved in the actual murder.”
Anokhina also tells us that there is no correlation between “honour killings” and a family’s devoutness or lack of it: “It’s difficult to say why these ‘traditions’ arose, Dagestan is a very diverse society. I know a village where there are ‘swingers’ among the inhabitants. And next door you have a family where there have been four ‘honour killings’.”
It is often members of the extended family — uncles, cousins — who initiate the murder of a young woman for unacceptable behaviour. In the winter of 2010, for example, police officers arrested Tarkhan Ozdoyev, a resident of Ingushetia, whom they suspected of killing his cousin and her two daughters. The bodies of Madina Ozdoyeva, 42, Zarema Ozdoyeva, 20, and Fatima Ozdoyeva, 18, were found by passers-by on the outskirts of the village of Ali-Yurt. Their corpses, which had been dumped in the woods, had been practically beheaded and were covered in bruises and abrasions — before being killed they had been badly beaten.
[18] Will the war in Russia’s North Causcuas’ ever end? by Denis Sokolov, Open Democracy, 28 August 2018, Honour killings in Russia’s North Caucasus, by Maria Klimova and Yulia Sugueva, Open Democracy, 16 August 2017: It is a translated version of an article originally sourced at:
The article further states that such honour killings are triggered by the perceived licentiousness sexual behaviour of female family members but often masks disputes about inheritance and property. The article goes onto state that honour killings are often passed off by the authorities as suicides or accidents.
“There are no reliable statistics on killings of women whose families believe they have brought shame on them,” concludes Olga Gnezdilova, a lawyer working for the Netherlands-based Justice Initiative Foundation. “In most cases their deaths are not even registered as murders. The young women are just buried, either with a proper funeral or just in a hole somewhere. The neighbours, of course know about it, but don’t report it, of course.”
The first applicant has been at pains to explain to the Tribunal that when her parents said to her that ‘they did not need her anymore’, it was understood that she would not only be ostracised but could be subjected to an honour killing for her apostasy. While the country information emphasises gender based honour killings targeting women for sexual or religious customs being broken, the Tribunal finds the extent of the Shariatisation of such killings would not be limited to those women who have breached sexual or marital taboos; but can reasonably be expected to extent to male and female apostates, imputed or otherwise, in the North Caucasus and that such honour killings based on apostasy are underreported.
Moreover, in the context of the ongoing Islamisation or Shariatisation of Muslim Dagestani society and the accepted history of intergenerational violence within the first applicant’s family, the Tribunal accepts the first applicant’s testimony that her parents did mean to threat the first applicant will significant physical violence and the arbitrary deprivation of her life if she were to convert to Christianity. Given the Tribunal accepts the first applicant revealed her apostasy to parents, the Tribunal accepts there is a chance of being subjected to serious harm arising from her apostasy from Islam due to the social humiliation associated with a daughter converting to Christianity within a conservative Sunni Muslim family of Avar ethnicity.
In the absence of any effective internal protection from honour killings by family members and the lack of internal security from violence by Muslims towards Christians within Dagestan, the Tribunal finds that there the chances that apostates from Islam who bring acute shame or embarrassment to their Muslim families in Dagestan will be targeted for persecution by family members directly of by conservative or radical Muslims, on behalf of those family members, will be substantial and real; and the that the essential and significant reason for that persecution will be her religion as a nexus reason mentioned in the Refugees Convention.
Based on this country information, the Tribunal accepts the first applicant has a well-founded fear of persecution for a Convention reasons, if she were to be returned anywhere within her home area in the Republic of Dagestan, in the reasonably foreseeable future.
Relocation
Depending upon the circumstances of the particular case, it may be reasonable for a person to relocate in the country of nationality or former habitual residence to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. The principles discussed by the court in Randhawa v MIELGEA (1994) 52 FCR 437, per Black CJ at 440-1, require the Tribunal to determine whether he or she can, reasonably in all the circumstances, live safely and free from a risk of such harm by resettling and living in another part of his country.
In MZYLH v Minister for Immigration & Anor [2011] FMCA 888 (17 November 2011),[20] the court said at [137]-[138]:
137. The Tribunal is required to consider the practical realities facing a person in determining whether it is reasonable to expect them to relocate. Those practical realities are not limited to matters related to persecution for a Convention reason:
A well founded fear of persecution for a Convention reason having been shown, a refugee does not also have to show a Convention reason behind every difficulty or danger which makes some suggestion of relocation unreasonable.[146]
138. The issue is not whether the Applicant might be denied treatment for his mental illness for a Convention reason but whether he could relocate within Pakistan and maintain himself given the state of his health. As Branson J said in NAIZ, the approach set down in Randhawa requires the Tribunal to consider the practical realities facing the Applicant to consider how, in a practical sense, he could reasonably be expected to relocate.[147]”
[20] In that case there was evidence that the applicant was suffering from severe depression and severe post-traumatic stress disorder.
What is 'reasonable', in the sense of ‘practicable’, will depend upon the particular circumstances of each applicant and the impact upon him or her of relocation within his or her country of nationality. However it should be noted that the Refugees Convention is concerned with persecution in the defined sense, not with living conditions in a broader sense. Whether relocation is reasonable, in the sense of practicable, is therefore not to be judged by considering whether the quality of life in the place of relocation meets the basic norms of civil, political and socio-economic rights: see SZATV v Minister for Immigration and Citizenship [2007] HCA 40 at [23]-[25] per Gummow, Hayne and Crennan JJ (with whom Callinan J agreed).
Consideration of the relocation of the first applicant is therefore concerned with her particular circumstances.
Accordingly, the Tribunal has considered the evidence whether there is an appreciable risk of serious harm outside the Russian federated Republic of Dagestan, either for a Convention or a non-Convention reason.
Although she has lived outside of Dagestan since she revealed her Christian conversion to her Muslim parents since 2000 till her departure to Australia in 2009, it was claimed that the situation in the rest of the Russian Federation has deteriorated and that she will face a real chance of serious harm as an evangelical Christian based on her personal circumstances.
It is clear from these claims that the applicant does not hold a personally held fear of the same appreciable risk of the occurrence of the feared persecution for the same Convention reason she feared within Dagestan, namely serious harm arising from her apostasy from Islam. Objectively speaking, the Tribunal further finds that the first applicant does not have a well-founded fear of persecution arising from her apostasy from Islam whereby she would be targeted by conservative Muslim family members or Islamic militants from Dagestan throughout the Russian Federation.
What is emphasised by the first applicant was the deterioration of religious rights for ‘illicit’ evangelical Christians throughout Russia since her departure.
For the following reasons, the Tribunal accepts that it will be unreasonable to have the applicant relocate outside of Dagestan, based on her accepted personal circumstances and the available country information:
Since the applicant has left the Russian state has passed a number of laws, including the recent Yarovaya law, which monitor and punish non-Orthodox Christian proselytization, especially from evangelical Christians and from non-traditional churches or religious organisations.

100. In 2013, Russia’s Parliament enacted blasphemy laws in response to political protest in Moscow’s Orthodox cathedral in 2012. These new criminal laws have been used to fine, confiscate salaries and imprison political activists whose activities have offended religious convictions or feelings of Orthodox believers.
101. The first applicant claimed that her Protestant Christian religion has been declared extremist by the Russian state.
102. The available country information indicates that the Moscow branch of the Church of Scientology was ordered by Russia’s Supreme Court to be liquidated in 2016; the Jehovah’s Witnesses were banned as an extremist organisation in 2017; and the St Petersburg headquarters of the Church of Scientology was raided and key members were arrested for ‘illegal business operations” and extremism in June 2017.
103. However, the Tribunal has been unable to locate any information that Baptists and similar evangelical Protestant churches are similarly affected. According to the Slavic Center for Law and Justice, Protestants make up the second largest group of Christian believers, with 3,500 registered organizations and more than 2 million followers, indicating that Protestant organisations generally work within the perimeters of Russia’s increasingly restrictive laws. (The Tribunal notes that these registration laws themselves are restrictive and vague. For instance, the religious organisations can only preach to its own members but do not have the legal right to a bank account, own property (although members of a registered religious organisation can utilise their own property), issue invitations to foreign guests, publish literature, receive tax benefits or conduct worship services within prisons, the armed forces or state-owned hospitals.)
104. There is also recent information that the Yarivaya Law is used to target and punish a large number of religious believers for sharing their beliefs. According to this law, in order to share beliefs outside of officially sanctioned sites (which include buildings owned by a religious organization, buildings whose owners have given permission for activities to take place, pilgrimage destinations, cemeteries and crematoria, and indoor spaces of educational organizations historically used for religious ceremonies), an individual must have a document authorizing the individual to share beliefs from a religious group or registered organization. This letter must be provided to the authorities and the individual must carry a copy of it. The law explicitly bans any beliefs from being shared in residential buildings without such documentation (unless in the form of a religious service, rite, or ceremony), or on another organization's property without permission from that organization. Materials disseminated by missionaries must be marked with the name of the religious association providing the authorization. Engaging in missionary activity prohibited by the amended law carries a fine of 5,000 to 50,000 roubles ($86 to $860) for individuals and 100,000 to 1,000,000 roubles ($1,700 to $17,300) for legal entities (which includes both LROs and CROs). Foreign citizens or stateless persons who violate restrictions on missionary activities may be fined 30,000 to 50,000 roubles ($520 to $860) and are subject to administrative deportation.[21]

[21] International Religious Freedom Report 2017, USDOS, p.7., As Human Rights Watch reported in 2016:
The “Yarovaya Law” contains other troubling regulations that encroach on freedom of conscience, freedom of association, and other rights. The law bans proselytizing, preaching, praying, or disseminating religious materials outside of “specially designated places,” like officially recognized religion institutions. It criminalizes “the failure to report a crime” with little specificity on when such a reporting requirement would apply. It increases penalties for vaguely defined “public justification of terrorism” online and penalizes “inducing, recruiting, or otherwise involving” others in mass unrest.[22]
[22] Russia’s Big Brother Law Harms Security, Rights:, 12 July 2016, Human Rights Watch, According to Forum 18, from November 2016 and July 2017, 133 fines were levied against individuals or their religious communities, the majority of them Protestants and Jehovah’s Witnesses. At least eight foreign citizens were ordered to depart for violating prohibitions against missionary activists.
107. As discussed in the hearing, the first applicant claimed that like-minded Russian Christian missionaries have recently received text messages and emails to desist with sending religious salutations of good will or rendezvous for underground meetings. This concurs with the country information that that the surveillance regulations of the ‘Yarovaya law has taken effect on 1 July 2018. According to the amendments, Internet and telecom companies are required to store communications and metadata for 6 months to 3 years. They are required to disclose them, as well as "all other information necessary," to authorities on request and without a court order.
108. There is also some country information about the societal or sectarian discrimination and harm aimed at non-Orthodox Christian religions occurs, but also indicates that the incidents are not widespread, or at least under-reported. Media, NGOs, and religious groups reported physical assaults related to religious identity during the year, although according to data collected by the non-profit SOVA Center for Information and Analysis, there were fewer recorded instances of violence based on religious identity than in prior years. SOVA recorded three acts of violence directed against religious groups compared to 21 such acts in 2016. SOVA also separately recorded 13 acts of violence against Central Asians and individuals from the Caucasus during the same period compared to 31 in 2016. Because ethnicity and religion are often closely linked, it was difficult to categorize many of these incidents as being solely based on religious identity. The media also attributed some of these attacks to the political or human rights activities of the victims. The Slavic Center for Law and Justice reported two armed men broke into a Pentecostal church in January, beat two parishioners, and threatened them at knifepoint. The assailants demanded to see a list of church members, identified themselves as “native Orthodox,” and promised to eradicate all “sectarians.” The assailants reportedly had been known for prior antigovernment internet posts.[23]
[23] International Religious Freedom Report 2017, USDOS, p.27-28. Based on this available country information – as limited as it was in English, it is the assessment of the Tribunal that the applicant does not have an appreciable risk of being killed or tortured or significant physical ill-treatment arising from Russia’s laws ostensibly designed to protect the sensitivities of Orthodox Christian believers or tackle extremism. Although Russia does have problems with violent religious extremism, especially in the North Caucasus, these laws - cumulatively considered - are dual-purposely designed to monitor and punish dissent and social forces, including religious movements, largely for political purposes. These disturbing developments also demonstrate a progressive deterioration of religious liberties through the encroaching criminalisation of a wide range of non-state sanctioned religious activities throughout the Russian Federation.
110. However the first applicant has provided credible evidence that she has resisted both official and unofficial restrictions on the practice of her evangelical Christian religion in the past through attending underground churches and missionary activities. The Tribunal accepts that she would encounter not only lawful constraints on her proselytization and that it is not far-fetched or fanciful to foresee that her religious activities, including online activities, will come to the attention of the Russian authorities. While the Tribunal foresees the applicant will then be punished with fines, it does not accept this punishment amounts to serious harm.
111. Of greater concern to the Tribunal is the real or appreciable risk of the applicant encountering significant physical harassment through repeated fines, extortion, bribery and the denial of internal protection by the authorities due to her religion and her ethnicity.
112. As discussed in the scheduled hearing, the first applicant with the other applicants will be required to relocate outside of Dagestan without the residential benefits of her husband’s propiska. Propiska act as internal passports, issued to persons aged over 16 and are subjected to renewal every five years. No change of official residence can be changed without permission and failure to register can be subject to fines and imprisonment, They are also required to access work, marriage and gain access to educational and social services. Propiska can be difficult to obtain for certain places, such as Moscow and can be used to restrict the movement of ex-convicts, political dissenters and some ethnic groups, such as Roma. Because of their difficulties in obtaining them and because they have been known to arbitrarily withdrawn, bribery and contrived marriages are often undertaken to circumvent their restrictive impact. Propiska, arguably unconstitutional, are administered by regional governments. Their registration can be arbitrarily denied to influxes of populations to avoid ethnic conflicts and limited to by registered sponsor. According to the Council of Europe, the ‘shadowy’ propiska regulations in Russia have led to numerous ‘allegations of extortion, or of discriminatory treatment of refugees, asylum seekers, or anyone who happens not to look like a Slav”. This is outlined in the country information submitted by the applicants’ representative.
113. In 2013, President Putin who proposed the introduction of substantial fines and even prison terms for those found to have violated the rules on registration within the territory of the Russian Federation. The Russian Legal Information Agency argued that the bill requires property owners to report any unregistered person living in the premises. In this case there is no distinction between foreigners and Russian nationals. The bill further permits the authorities to deport Russian nationals that are unregistered in the city that they're presently residing in. The bill was triggered with a July 2013 incident at an open-air market in Moscow that left a police officer with a broken skull – a brutal injury aired for all on the internet to see once shaky video footage emerged. The beating occurred as police endeavoured to arrest a 25-year-old Dagestani native wanted on suspicion of trying to rape an under-aged girl.[24]
[24] Russia’s new migration policy RAPSO, 29 August 2013 While country information is limited, reports of corrupt practices associated with propiska and deportations back to North Caucasus have been documented by Human Rights Watch since the 1990s:
Law enforcement agents responsible for the abuse are the militia (police) officials; Ministry of Interior special forces, known in Russian as OMON;8 and road patrol officers, known in Russian as GAI.9 Although no reliable statistics are available,10 it appears that the most frequent victims of state-sponsored, ethnically motivated attacks are people from the Caucasus Mountains (Armenians, Azerbaijanis, Chechens, Georgians, Kurds and others); the Middle East and Central Asia (Arabs, Iranians, Kurds, Afghans and Tajiks); the Asian subcontinent; and Africa. There also appears to exist a rough correlation between skin color and abuse: the darker the skin or less Slavic the features a person has, the worse the treatment is by law enforcement officials.11 As a rule, men receive far worse treatment than women. The result of the campaign of harassment is that people of color residing in or visiting greater Moscow have been killed, injured, terrorized, humiliated, deported from city limits, forced to keep themselves under de facto house arrest and otherwise limit their movement, and, ultimately, leave Moscow - perhaps the unspoken goal of the campaign.[25]
[25] Russia: Crime or Simply Punishment? Racist attacks by Moscow Law Enforcement, Human Rights Watch, Vol7, No 12 September 1995, As the first applicant is unmarried and is originally from Dagestan, the country information strongly suggests to the Tribunal that she will be subjected to such ethnic discrimination and that she will be compelled to acquire propiska for herself and children through bribery to access a relative freedom of movement within the Russian Federation. As the propiska attracts petty law enforcement agents to justify racist acts, arbitrary behaviour and exploitation during residency and identity checks, the Tribunal finds that that, if she were to relocate outside of Dagestan, the first applicant will be required to persevere such frequent ‘anti-crime’ measures, threats of resettlement back to Dagestan and/or arbitrary detention designed to force her and her family to leave for Dagestan or to continually face the risk of bribery and extortion by venally corrupt officials. This harm would amount to significant physical harassment as outlined in s.91R(2)(b) and thus satisfying s.91R(1)(b) regarding serious harm.
116. The assessment is also reached within the context to the recent deterioration of religious rights in Russia. Russian state’s draconian laws and practices against the proselytization of any non-state sanctioned Christian religion are enforced throughout the Russian Federation. The Tribunal cannot be confident that once the first applicant’s unlawful evangelical practices come to the attention of the authorities leading to being fined under the 2016 ‘Yarovaya law” that the first applicant will not be subjected to ongoing physical and electronic monitoring, frequent extortion and bribery with threats to return to Dagestan arising the state’s lawful capacity to relocate ethnic Avars and other Dagestanis back to Dagestan – the first applicant’s home area, where she faces a real chances of serious harm.
117. As the Tribunal finds that the applicant’s evangelical Christian religion and her ethnicity as a Dagestani Avar will also become apparent to the authorities, the Tribunal is not confident the authorities will provide her and her children the sufficient protection for frequent corrupt practices. Furthermore, the Tribunal is also mindful of the first applicant being vulnerable as a sole parent with two young and vulnerable children which heightens the impact of serious harm upon her person.
118. Having considered the first applicants’ accepted circumstances, cumulatively considered, the Tribunal finds that it will be unreasonable for her to relocate anywhere throughout the Russian Republic, now or in the reasonably foreseeable future, as the first applicants will encounter an appreciable risk of persecution arising from combination of her religion and her ethnicity.
119. The Tribunal is therefore satisfied that there is an appreciable and real risk that the first applicant will encounter a level of harm that satisfies s.91R(1)(b), based on her personal circumstances and the available country information, by relocating anywhere outside of her home area of Dagestan within the Russian Federation, now or in the foreseeable future.
Additional findings
120. Furthermore, the principle underlying the judgments in S395/2002 v MIMA is that asylum seekers are not required, nor can they be expected, to take reasonable steps to avoid persecutory harm. The Federal Court has emphasised that, on the reasoning of the High Court in S395/2002 v MIMA, the harm in question is the threat of persecution, rather than the impact of repressed behaviour.
121. In this matter it accepted that the first applicant has long history in concealing her Christian conversion from Islam from her family members and other Dagestani Muslims, in attending underground churches and in clandestinely evangelising a non-state sanctioned Christianity. If she were to return to Russia, she would be required to conceal her religious convictions as an evangelical Christian, which is fundamental to her identity and conscience to avoid persecution. This further enlivens Australia's non-refoulement obligations from 'expelling or returning a refugee in any manner whatsoever to the frontiers of territories where her life or freedom would be threatened on account of her race, religion, nationality, membership of a particular social group or political opinion'.
122. Accordingly it would also be unreasonable to expect the first applicant to relocate within the Russian Federation by insisting her to modify her behaviour to avoid an appreciable or real chance of persecution for a Convention reason, namely her religion.
123. Based on these considerations regarding a well-founded fear in her home area and about the reasonableness of relocation, cumulatively considered, the first applicant does satisfy the Refugees Convention and subsection 36(2)(a).
Other Applicants and Conclusion
124. Having assessed that the first applicant satisfies the Refugees Convention, the Tribunal has considered whether the other applicants satisfy s.36(2).
125. Based on the information before the Tribunal and its findings above the nature of the applicants’ relationships to each other, the Tribunal is satisfied the first applicant is the biological mother of the second and third applicants and that the second and third applicants are dependent minor children of the first applicant. Therefore the second and third applicants satisfy clause 1.12(4)(b) of the Migration Regulations, that they have membership of the same family unit as the first applicant for the purposes of this application for review.
126. As the first applicant is a person who satisfies s.36(2)(a) and is entitled to a protection visa, it follows that the Tribunal, as presently constituted, is satisfied that the second and third applicants are members of the same family unit of the first applicant for the purposes of s.36(2)(b)(i)
127. Accordingly the second and third applicants are entitled to a protection visa provided in the criterion s.36(2)(b)(ii) and the remaining criteria, including health and character requirements, for the visa are met.
128. For the reasons given above, the Tribunal is satisfied that the applicants are persons in respect of whom Australia has protection obligations under the Refugees Convention and that they do satisfy the criterion set out in s.36(2).
129. The Tribunal is also satisfied that applicant does not have the right to enter and reside, either temporarily or permanently, in a third country protection, pursuant to s.36(3) of the Act.
DECISION
130. The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s.36(2)(a) of the Migration Act 1958; and
(ii)that the other applicants satisfy s.36(2)(b)(i) of the Migration Act 1958, on the basis of membership of the same family unit as the first named applicant.
Brendan Darcy
Member

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Citations
1607017 (Refugee) [2018] AATA 4371

Cases Citing This Decision
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Cases Cited
6

Statutory Material Cited
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MZYLH v Minister for Immigration & Anor [2011] FMCA 888

SZATV v MIAC [2007] HCA 40

Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198