2118573 (Refugee) - [2024] ARTA 607

2118573 (Refugee) [2024] ARTA 607 (29 October 2024)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Home Affairs

Tribunal Number: 2118573
Tribunal:General Member S Manera
Date:29 October 2024

Place:Sydney
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
· s 36(2)(a) of the Migration Act.

Statement made on 29 October 2024 at 3:14pm

CATCHWORDS
REFUGEE – Protection Visa – Russia – political opinion – fears harm from the United Russia Party – actively participated in anti-war protests and pro-Navalny protests – opposition to corruption – pro-Navalny/anti-Putin/anti-war activities – there is a real chance that the applicant would face physical harassment, ill-treatment, detention – decision under review remitted

LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958, ss 5, 46, 65, 499

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 December 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal.
The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT, in a manner that is efficient and fair. Anything done in, or in relation to, the proceeding before 14 October 2024 that was validly done according to the applicable law at the time is taken to be valid under, or to have been done in accordance with, the law as it is now, for the purposes of the proceeding after 14 October. Anything done in, or in relation to, the proceeding after 14 October 2024 by the AAT is taken, after that time, to have been done by the Tribunal.
BACKGROUND
The applicant is a [age]-year-old woman and a citizen of the Russian Federation.
On [date] May 2018 the applicant arrived in Australia on a valid Class FA - Visitor visa.
On 16 May 2018 the applicant applied for a protection visa.
Evidence before the Department
On 4 June 2018 the applicant provided a written statement in support of her application for protection (first statement). In it, she claimed:
·She fears harm from the United Russia Party (URP) because she has detailed knowledge of their corruption schemes in Russia. Members of the URP are present in all spheres of Russian society;
·She worked as an [Position 1] of a small business called [Company 1] ([Company 1]). [Company 1] was engaged in [various services], amongst other activities;
·The managing directors of large companies are required to be members of the URP;
·She is not a member of the URP;
·To win government contracts, businesses are required to pay kickbacks to government officials;
·Under a contract dated 6 April 2015, [Company 1] carried out the work of [details deleted]. During a meeting on 10 April 2015, the head of [a government agency] indicated there had to be a kickback in the amount of 10% of the contract value. The applicant attended the meeting with the commercial director of [Company 1]. The applicant tried to fight against the kickbacks. [Company 1] did not pay the kickbacks. Therefore, the customer delayed payment of [Company 1]’s work;
·She took this dispute to a court. Approximately one year later [Company 1] managed to win the case;
·The administration of the city of [City 1] fabricated a case against [Company 1], but was unable to sue the company as [Company 1] had fulfilled all of its obligations and the limitation period had passed;
·[Company 1] had a contractor to collect [Material 1] in [a] district. The police took kickbacks in the form of [Material 1]. The police requested more [Material 1], but [Company 1] refused to provide it. As such, on 6 August 2017 the police confiscated the leased equipment without permission. The applicant made an application to the police colonel of [the] district to demand return of the equipment. Her request was denied because the police had become aware that [Company 1] was against corruption;
·On 29 September 2017, [name] wrote a statement to the police as a private victim. After that, the complaint was accepted and assigned case number;
·On 21 August 2017 the applicant was called by [Mr A] from the [agency]. Psychological pressure was exerted on her. [Mr A] hinted that the applicant should not tell anyone about the kickbacks or illegal police action. He threatened that he would start a criminal case against her if she told anyone about the corruption;
·On 12 September 2017 the applicant attended an interrogation, where she was put under psychological pressure. She was threatened that she would be jailed if she talked about corruption amongst officials and law enforcement agencies;
·She had tried to talk with other partners about stopping the payment of kickbacks and speaking out against them, but no one listened to her because no one wanted to lose their positions and contracts. [Company 1] began to lose customers and contracts. The business’s funds were exhausted and there was no money to keep the company afloat. The applicant could no longer work at [Company 1];
·On 1 September 2017 the applicant started work as a [manager] for the [Company 2]. She joined [a] Foundation on 15 September 2017. Immediately afterwards she started being stalked. There were always suspicious cars with suspicious people near her office. People asked her manager where to find her and what she was doing at [Company 2];
·She received messages asking her to go to her car to “have a chat” with members of the URP. This continued from 19 September 2017 to the end of October 2017;
·In October and November 2017, she continued to receive calls and messages demanding compliance and threatening that they would find her. The messages threatened that they would blackmail her parents;
·On 7 December 2017 the applicant told staff at the Ministry of Internal Affairs that she was being harassed and threatened by the police, however her complaint was not registered;
·In February 2018 the applicant was contacted by an operative officer of the directorate of the Ministry of Internal Affairs of [Russia], who stated that she had to appear for questioning. She was not given an agenda and case number for the questioning;
·On 13 February 2018 the applicant’s mother was telephoned and was asked where the applicant was, whether she had children or a husband and where she worked;
·On 16 February 2018 the applicant was put under pressure from the Ministry of Internal Affairs. She was told to forget about the kickbacks and be quiet;
·On 23 April 2018 the applicant was dismissed from work at the [Company 2] because her director was opposed to Navalny’s anti-corruption movement;
·Between 3 and 5 May 2018 unknown people came to look for her at [address]. They said they were members of the URP. They tried to find out the applicant’s whereabouts from her landlord;
·She fears members of the URP will persecute her because she knows about corruption among party members;
·Anyone can find out where she is by tracking her car, her electronic accounts, her online payments and her passport, etc;
·She cannot relocate anywhere in Russia;
·If she returns to Russia by plane, the police will detain her at passport control and she will be denied her rights;
·She fears she will be tortured and physically harassed and will lose her life.
On 4 June 2018 the applicant submitted the following documents to the Department in support of her protection visa application:
·Evidence of her employment with [Company 1];
·Evidence of her employment with [Company 2];
·Evidence of [Company 1]’s existence and operations including, but not limited to, taxation documents, documents relating to a business dispute and handwritten statements by the commercial director, a contractor and the applicant;
·Copies of correspondence to and from various police and government departments in Russia;
·Screenshots of various text messages;
·Screenshots of internet articles about the Community of Navalny;
·A letter confirming the applicant’s cessation of employment with [Company 2] on 23 April 2018;
·An undated handwritten letter purportedly from the applicant’s landlord;
·A receipt for a donation to the Anti-Corruption Fund dated 11 May 2018.
On 26 September 2019 the applicant submitted the following additional documents in support of her protection visa application:
·A second written statement (second statement);
·A second undated handwritten letter purportedly from the applicant’s landlord;
·A screenshot of a letter from the Secretary [of] the local branch of the URP to the applicant’s mother requesting information about the applicant’s location;
·Screenshots of undated country information.
On 9 December 2019 the applicant submitted the following documents in support of her protection visa application:
- A third written statement (third statement) claiming that her mother had been visited by a member of the URP;
·An undated handwritten letter from the applicant’s mother stating that a man came to her apartment on 11 November 2019 and introduced himself as being from the URP.
On 12 August 2021 the applicant attended an interview with an officer of the Department to discuss her claims for protection. During her interview she reiterated her claims of being an [Position 1] at [Company 1] and refusing to pay kickbacks. She stated, amongst other things, that she started supporting Navalny in mid‑September 2017 after she was shocked by her experience at the police station. She realised there were people who supported her anti-corruption views. She joined the movement by making a statement in a private social group. She supported the movement by providing donations and reposting on a social media [service]. She has never attended political protests in Russia.
On 17 August 2021 the applicant provided the following additional documents to the Department in support of her protection visa application:
·A fourth statement in which she provided further information about her protection claims and clarification about matters raised during her interview;
·National Accreditation Authority for Translators and Interpreters (NAATI) translations for screenshots of various text messages;
·Screenshots from her social media accounts;
·A screenshot of a supporter group called [name], with an unaccredited English translation;
·A screenshot of her Australian bank account showing a payment of $11.26 to an account called “[name]” on 17 September 2019;
·A copy of a receipt for a donation to the Anti-Corruption Foundation (ACF[1]) dated 11 May 2018;
·A letter from [Company 1], dated 13 January 2015, confirming the appointment of the applicant as [Position 1];
·A letter from the Ministry of Affairs of Russia dated 14 November 2014 requesting the details of an employee called [name] in relation to an investigation about the theft of [Material 1] on 21 August 2015, with a NAATI‑accredited English translation.
[1] This organisation name can also be abbreviated to FBK.
On 3 December 2021 a delegate of the Minister for Home Affairs refused to grant the applicant a protection visa under s 65 of the Act. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant (s 36(2)(b) and s 36(2)(c) of the Act).
Evidence before the Tribunal
The applicant made an application for review on 8 December 2021. The Tribunal finds that the applicant has made a valid application for review. The applicant provided a copy of the delegate’s decision to the Tribunal.
On 11 September 2024 the applicant, via her representative, provided the following documents to the Tribunal in support of her application for review:
·Submission by the applicant’s representative stating that she is relying on the same claims and materials that were provided to the Department, and that she has actively participated in anti-war protests and pro-Navalny protests in Sydney;
·Document called ‘evidence of activities’ with screenshots of photos of the applicant protesting in Australia, country information regarding amendments to the Russian Criminal Code, a list of donations made and screenshots of donations;
·Bundle of screenshots of emails from the ACF;
·Completed Form MR6;
·Statutory declaration by the applicant confirming she had read her representative’s submission.
The applicant appeared before the Tribunal on 18 September 2024 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 represented in relation to the review. The representative attended the Tribunal hearing.
On 23 September 2024 the applicant, via her representative, provided the following post‑hearing submission to the Tribunal:
·Document called ‘post-hearing submission’ listing a number of links and social media screenshots;
·Bundle of the applicant’s [Bank] account statements;
·Copy of a money remittance receipt in Russian, with English translation;
·Copy of the applicant’s degree certificate and academic transcripts in Russian, with English translation.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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, he or she 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 because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–LA, which are extracted in the attachment to this decision.
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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments 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.
Nationality
In her application for a protection visa, the applicant claims to be a citizen of Russia, born in [an area].
The applicant provided a certified copy of her passport bio-data page in support of her protection visa application. This document states that her nationality is Russian Federation.
There is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the information provided by the applicant, the Tribunal finds that she is a citizen of Russia, and as such her protection claims will be assessed against Russia as the country of reference and ‘receiving country’ respectively.
REASONS AND FINDINGS
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
Does the applicant satisfy the refugee criterion for protection?
During the hearing the applicant provided further details regarding her employment at [Company 1]. She provided substantial detail regarding the activities of the business, her day-to-day activities and the split in the duties between her and the commercial director. When the Tribunal expressed its concern to the applicant that she appeared to hold a very senior position in the company, despite being a young person who had only recently graduated from university, the applicant provided further details as to how she obtained her position, stating that she had a tertiary [qualification] (a copy of which was provided to the Tribunal), she had relevant experience in the industry and she made a capital investment in the business.
The Tribunal asked the applicant to discuss instances of her speaking out against corruption and kickbacks. The applicant referred to the example in her first statement where she attended a meeting with the commercial director and the head of [a department], during which she stated that [Company 1] would not pay kickbacks. When asked to provide further examples of speaking out against kickbacks, the applicant said that she shared her opinion with people in neighbouring offices and some of [Company 1]’s customers.

Considering the detailed oral evidence of the applicant and the supporting documents which corroborate her oral and written claims, the Tribunal accepts the applicant was employed as the [Position 1] of [Company 1] between 2015 and 2017. The Tribunal considers the business to be relatively small, considering it employed only[number] employees, it hired up to 20 sub-contractors at a time and the turnover of the business in each year in which the applicant was employed was approximately 100 million rubles. For the same reasons, the Tribunal also accepts the applicant was opposed to corruption and expressed her opinion about this within the industry. The Tribunal considers the applicant’s expression of her opposition to corruption at this time to be low level and limited to situations where she had to negotiate the terms of a business contract, or in conversations within small industry circles. However, considering the applicant’s young age at the time, the Tribunal accepts that her exposure to corruption in her first post-tertiary employment would have been the start of her opposition to corruption.
The applicant also provided evidence during the hearing regarding her involvement in politics. She stated that she joined a pro-Navalny [social] media group in September 2017. She liked and shared pro-Navalny posts to boost the group’s exposure. She started making donations in 2018. The applicant provided the Tribunal with evidence of 2 donations [each] to Navalny’s ACF made prior to her departure from Russia. While the amounts donated are small, the Tribunal considers this to be further evidence of the applicant’s opposition to corruption. On the evidence, the Tribunal accepts the applicant genuinely believes in the ideals of the Navalny movement, and that she became disillusioned by the systemic hypocrisy and corruption in Russia and felt a greater need to do something about it, even if her actions at the time were limited to small monetary donations and sharing or reposting on social media.
The applicant then provided evidence of her involvement in politics since her arrival in Australia. She stated she continues to make donations to Navalny’s ACF. Ample evidence of this in the form of bank statements, receipts and email acknowledgements has been provided to the Tribunal. She stated that in February 2022 she created [a social media] page in support of Navalny. Tens of screenshots of this page have been provided. The applicant also stated during the hearing that she had attended protests in Australia to support Navalny and condemn Russia’s war with Ukraine. Screenshots of photographs of her attendance at protests, posted on social media, were provided to the Tribunal. The Tribunal also notes the applicant’s attendance at a protest condemning Russia’s war with Ukraine was recorded in a photograph on [a] website. While the image of the applicant is very small in this photograph, the Tribunal notes from the photograph that camera operators were present at the protest and, considering only tens of people appear to have attended the [protest], the applicant’s image at the protest is likely to have been captured on film. The applicant also provided evidence of engaging in solo protests against the war in Ukraine in March 2022.
Country information paints a picture that the already dire situation for political dissidents in Russia has continuously worsened following the invasion in Ukraine on 24 February 2022 and there has been a noticeable surge in the authoritarian tendencies of President Putin’s regime,[2] resulting in intensified restrictions on individual rights and liberties in order to stifle domestic dissent.[3] According to OpenDemocracy.net,[4] those who protest on the street face a high probability of imprisonment, torture and cruel treatment, as well as dismissal from work and indirect reprisals against loved ones.
[2] ‘EUAA COI Query Response - Russian Federation - Major developments in the Russian Federation in relation to the treatment of political opposition and dissent’, European Union Agency for Asylum (EUAA), 05 October 2023 < ‘Freedom on the Net 2024 – Russia’, Freedom House, 16 October 2024 < ‘Why are Russians who oppose the war not taking to the streets?’, OpenDemocracy (14 June 2023) <
On 4 March 2022, a week after the war began, the Duma increased wartime censorship by passing a number of amendments to the Code of Administrative Offences (CAO) and the Criminal Code. These changes created punishments for any statements about the war and the Russian military. In the Criminal Code, a new article was introduced, 207.3 – Public dissemination of knowingly false information about the use of the Russian Federation’s military.[5]
[5] ‘«Knowingly false.» It has been three months since the law on «fakes» about the Russian army came into force. How and against whom is it used?’, OVD-Info (29 June 2022) <>
As noted by the Russia-based SOVA Research Centre,[6] all three branches of the government – the legislative, the executive, and the judiciary – are actively involved in supressing the anti-war protest. As a result, thousands of persons have found themselves facing charges in both criminal and administrative proceedings based on ‘the old anti‑extremist legal norms’ and ‘the newly adopted legislation restricting civil liberties’.[7] The SOVA Research Centre provides a summary of ‘anti-extremist’ legislation introduced since the invasion in Ukraine:
Under the law of March 4, a new article 20.3.3 was introduced in the CAO establishing liability for “public actions aimed at discrediting the use of the Armed Forces of the Russian Federation for protection of the interests of the country and its citizens or for keeping international peace and security, including calls to prevent the use of the Armed Forces of the Russian Federation for the indicated purposes.” The article provided for punishment in the form of a fine of 30 thousand to 100 thousand rubles for citizens, from 100 thousand to 300 thousand rubles for officials, and from 300 thousand to a million rubles for legal entities. In accordance with the amendments to the CC, in case of repeated violation within a year, citizens became liable under a new Article 280 CC. It had two parts, depending on the gravity of the consequences – punishment was provided in the form of a fine from 100 thousand to two million rubles, compulsory labor for up to three years, arrest for up to six months, or imprisonment for up to five years.
The same amendments introduced Article 20.3.4 CAO. It stipulated punishment for calls for imposing or extending political or economic sanctions against the Russian Federation, citizens of the Russian Federation, or Russian legal entities. The punishment for the first such violation within a year took the form of a fine of 30 to 50 thousand rubles for citizens, from 100 to 200 thousand for officials, and from 300 to 500 thousand for legal entities. Criminal liability followed for a repeated violation under the new Article 284 СС, which provided for a fine of up to 500 thousand rubles or in the amount of full salary for a period of up to three years, up to three years of restriction of freedom, up to three years of compulsory labor, up to six months of arrest, or imprisonment for up to three years with a fine of up to 200 thousand rubles or the full salary for a period of up to a year.
[6] SOVA Research Centre is a human rights organization that specializes in the study of extremism < SOVA, ‘Inappropriate Enforcement of Anti-Extremist Legislation in Russia in 2022’ (20 May 2023)< ; ‘EUAA COI Query Response - Russian Federation - Major developments in the Russian Federation in relation to the treatment of political opposition and dissent’, European Union Agency for Asylum (EUAA), 05 October 2023 <
According to the SOVA Research Centre, ordinary social media users have faced inappropriate charges under Article 20.3 of the CAO. The charges were most commonly based on posts that included symbols of projects that law enforcement agencies associated with Alexei Navalny, as well as on various images posted online and comparing the letter “Z” and the swastika.[8] Sanctions for convictions have included, but are not limited to, fines and administrative arrest. According to a report by The Christian Science Monitor, while most prosecutions have resulted in fines, repeat offenders face prison terms.[9] According to OVD‑Info,[10] 1,075[11] people have been persecuted for anti-war activism with 332[12] people jailed in pre-trial detention centres, prisons or on forced medical treatment.[13]
[8] SOVA, ‘Inappropriate Enforcement of Anti-Extremist Legislation in Russia in 2022’ (20 May 2023)<
[9] ‘In Russia, critiquing the Ukraine war could land you in prison’, The Christian Science Monitor (22 December 2022) <
[10] OVD-Info is an independent human rights defence and media group, monitoring and advocating for human rights in Russia.
[11] As reported at 24 October 2024.
[12] As reported at 24 October 2024.
[13] ‘Anti-war criminal cases criminal repression for anti-war stance in Russia’, OVD-Info <>
Online reports also indicate the Russian government actively monitors social media accounts and uses surveillance cameras against activists.[14] While Instagram is blocked in Russia, users of the platform have faced prosecution.[15]
[14] <
[15] Ibid.
Laws prohibiting extremist materials and other content, as well as the implementation and expansion of the “foreign agents” law, have contributed to self-censorship online, particularly with regard to sensitive political, economic and social topics such as the invasion of Ukraine and mobilisation, poor governance, corruption, human rights violations, religion and the LGBT+ community. According to Freedom House, the adoption of laws criminalising the dissemination of “fake news” about the Russian invasion of Ukraine and preventing the dissemination of non-official information about the war further contribute to an environment of self-censorship.[16]
[16] ‘Freedom on the Net 2024 – Russia’, Freedom House, 16 October 2024 <
According to multiple online sources,[17] police in Moscow have investigated Navalny supporters after personal details (including names, birth dates and employment details) of persons who had made financial donations to the ACF were leaked online. According to OVD-Info, in early July 2021 a Russian court recognised Navalny’s ACF as an extremist organisation, demanded that it be liquidated and banned its activities on the territory of Russia. The penalty for financing the activities of an extremist organisation include a fine of 300 to 800 thousand rubles, forced labour or imprisonment for up to 8 years.[18]
[17] ‘Internet blocks as a tool of political censorship’, OVD-Info (7 June 2022) < ‘The Navalny Leaks: Data, Probiv, and Russian Political Influence’, Flashpoint (15 September 2021) < ‘Moscow Police Visit Navalny Supporters’ Leaked Addresses – Reports’, The Moscow Times (18 August 2021) < ‘Internet blocks as a tool of political censorship’, OVD-Info (7 June 2022) <>
The applicant has provided detailed and consistent evidence to the Department and the Tribunal over the course of 6 years. During this time she has also endeavoured to provide the Department and Tribunal with relevant documents to support her matter. When requested to provide specific documents to the Tribunal, these were provided promptly. The applicant provided detailed oral evidence during the hearing, including specific details that, the Tribunal considers, only a person who had been involved in the situation would be able to provide. The Tribunal also considers the applicant did not seek to exaggerate her claims. The Tribunal has considered the development of the applicant’s interest in politics and disdain of corruption over time. While it notes that her political activism in Russia was limited, the Tribunal finds her limited activities in Russia are consistent with a young person whose interest in politics and the anti-corruption movement were beginning to develop. The Tribunal acknowledges the applicant’s political activism increased substantially from the time Russia invaded Ukraine in February 2022. The Tribunal finds it natural that, following the full-scale invasion in Ukraine and subsequent atrocities, there would be a noticeable surge in the applicant’s opposition to President Vladimir Putin and her support for Navalny. The Tribunal considers the applicant’s behaviour over time to be consistent with one who maintains strong opinions against the Russian government, against the war in Ukraine and against corruption in Russia. Considering this, the Tribunal finds the applicant would continue to express her views if she were to return to Russia and the only reason she would seek to limit or restrict the expression of her views is fear of harm. The Tribunal further finds that while the applicant’s pro-Navalny [page] only has approximately [number] followers, she has been regularly active on social media over the past 2 years and evidence of her attendance at an anti-Russia protest has been captured on at least one online platform with a widespread Russian [audience]. The Tribunal also notes that the applicant has made financial donations to Navalny’s ACF and, considering multiple reports that the names of persons who have donated to Navalny’s campaign have been leaked, the Tribunal finds there is a real chance that the applicant’s name has been published.
As such, the Tribunal finds there is a real chance that the Russian authorities will become aware of the applicant’s pro-Navalny/anti-Putin/anti-war activities if she were returned to Russia.
Having considered the evidence before it, the Tribunal finds that if the applicant were to be returned to Russia, there is a real chance that she will suffer imprisonment, serious physical violence and humiliation at the hands of the Russian authorities. The Tribunal is satisfied that such treatment amounts to serious harm under s 5J(4)(b) of the Act. As required by s 5J(4)(a), the Tribunal finds the essential and significant reason for the persecution feared by the applicant is her political opinion. The Tribunal finds the harm is systematic and discriminatory as required by s 5J(4)(c). Considering the applicant fears harm from the authorities, the Tribunal finds that effective state protection is not available to her in Russia. Furthermore, the Tribunal finds that the real chance of persecution relates to all areas of Russia.
The Tribunal does not find the applicant could take reasonable steps to modify her behaviour so as to avoid a real chance of persecution, as doing so would conflict with a characteristic that is fundamental to her conscience and would require her to alter or conceal her true political beliefs. This would be inconsistent with s 5J(3)(a) and s 5J(3)(c)(iii).
The Tribunal has considered s 36(3) of the Act, but based on the available evidence the Tribunal finds the applicant does not have a right to enter and reside in a third country and therefore s 36(3) is not applicable.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Migration Act.
Representative:  Mr Yevgen Kyselov (MARN: 9803836)
Date of hearing:  18 September 2024
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
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5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36     Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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