Charaev v Minister for Immigration and Multicultural Affairs

[1999] FCA 1828

FEDERAL COURT OF AUSTRALIA

Charaev v Minister for Immigration and Multicultural Affairs [1999] FCA 1828

SERGUEI CHARAEV v
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 1195 OF 1998

TAMBERLIN J
SYDNEY
17 DECEMBER 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1195 OF 1998

BETWEEN:	SERGUEI CHARAEV APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	17 DECEMBER 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The application is dismissed with costs.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1195 OF 1998

BETWEEN:	SERGUEI CHARAEV APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	17 DECEMBER 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In this matter the applicant seeks protection as a refugee on the basis that he comes within Article 1A(2) of the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol, which relevantly defines a refugee as any person who, owing to a well-founded fear of being persecuted for reasons of 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.

2. The relevant ground on which the applicant seeks the benefit of the Convention is that he holds political opinions in respect of which he has a well-founded fear of being persecuted if returned to Russia.  The applicant was born in the Russian Far East in 1960, and after he completed his education, he pursued a number of occupations including that of senior detective in the Department of Militia.  The head of that department was a Major-General Balanev, a member of the Communist Party.  The applicant says that he had always been opposed to Communism.

3. The applicant claimed before the Refugee Review Tribunal (“the RRT”) that in October 1995 he was approached by several persons in a threatening manner, and that those approaching him insisted that he should vote for Mr Balanev in the 1995 elections to the Duma.  However, he refused.  He says that he objected to the whole system because it was undemocratic.  The next day he says he was called in to see his superior, who threatened that if he did not vote for Balanev he would not be paid.  He says his salary was then stopped for about four months from December 1995.  In that month, the applicant says that he was ordered to investigate the murder of a journalist who had been outspoken in criticising the administration.  The journalist had proposed to write an article, and before his death he had been visited and threatened by a number of people, including at least one from the Department of Militia.  In January 1996, the applicant began receiving threats by telephone and his summer house was burnt down.  He says that his wife and children were also threatened by phone.  He continued investigating the case, but at the end of February he was beaten up and Balanev discharged him from the case and closed the investigation.

4. In March 1996, he says he wrote to the Russian Minister for Internal Affairs, telling him about the attempt to force him to vote.  He continued working privately on the journalist's case.  He says, and this is important, that in late April or early May he was dismissed from employment, and there was an attempt made to murder him.  The applicant says he decided to sue in the courts and lodged an application for that purpose.  He saw a legal adviser and then decided against pursuing any action.

5. The applicant says that he and his family went to a hunting lodge some 300 kilometres north of the city of Komsomolsk.  He then went back to Komsomolsk to the Passport Office, and left Russia in August 1996, he says, fearing for his life.  His wife gave evidence to the RRT, but she made no separate claims on her own behalf or on behalf of the children.  In assessing the applicant's case the RRT member based his decision essentially on the credibility of the applicant.  The member formed an adverse view of the applicant's credibility primarily based on entries which were contained in the applicant's employment book.

6. The first entry was dated 9 November 1995 and the relevance of this date is that it was about the time when the applicant was allegedly in disfavour with his employers.  This refers to an award for good results in performing his official duties.  As the member points out, this statement is inconsistent with the thrust of the case advanced by the applicant.  No satisfactory explanatory was given for this, but the applicant says that the RRT should not have engaged in speculation and should have given him the benefit of the doubt.  The RRT did not share this view.

7. The second entry was one dated 6 May 1996, which states that on that date the applicant was engaged as a Commercial Director in the Vostok capital.  This was seen by the RRT member to be inconsistent with the applicant's case that he had been dismissed.  After the hearing, the applicant obtained a document certified by a public notary to which was purported to be affixed the seal of the chief of the Khabarovsk Region Interior Department.  This document purports to say that the applicant, a senior detective for the investigation of personal property thefts, is to be dismissed for committing actions not compatible with the requirements for personal and moral qualities of Interior Department employees as of 30 April 1996.  Although this document was not before the RRT, I have decided to admit it into evidence as a matter to be taken into account in deciding whether there was a threat to dismiss him.

8. The RRT member had evidence before him in the form of the employment book, which indicated that the applicant was a commercial director as at 6 May. The subsequent material just referred to throws some doubt on this, but the fact is that in the end result, there was relevant material before the RRT member on which the conclusion could have been reached and therefore there was no contravention of the requirements of section 476(1)(g) of the Migration Act 1958 (Cth).

9. A further matter relied on by the RRT member was that there was no entry in the employment book to show the applicant's alleged dismissal or the stopping of his salary, or indeed recording any other adverse comments about him.  This was clearly a relevant consideration and has not been contradicted by any evidence pointed to in the submissions of the applicant.

10. In addition to the perceived inconsistencies, there was also the consideration that the employment book was not submitted to the Department for Immigration and Multicultural Affairs until it requested that the applicant should do so.  The member drew inferences from this course of conduct which were considered to reinforce the conclusion eventually reached.

11. In addition, the member relied on the inherent unlikelihood in the case advanced by the applicant, in that it was unlikely that in December 1995, the applicant, having fallen out with his superiors and being known for his critical attitude, would be entrusted with the task of investigating a murder that those superiors might have feared could implicate them or their associates.  These matters could reasonably have been regarded as assisting the conclusion at which the member arrived.

12. Against these considerations, there were documents purported to be produced from officers of the Department of Militia in Komsomolsk, confirming the applicant’s story in general.  However, the RRT member considered that having regard to the form and identical wording of these documents, they ought be given little weight, and that weight was not sufficient to overcome the problems in the applicant’s case.  The question of assigning weight and balancing the competing evidence is one for the RRT and not for this Court, unless it was not open to the RRT to reach the conclusion which it did.  In my view, the conclusion of the member was open on the material in this case.

13. There was also a letter from the applicant's sister referring to interest by officials in relation to the applicant, but again the member decided to give it little weight on the basis that it did not provide any independent evidence. 

14. In the final analysis, the decision of the RRT rested on the documentary record, in respect of which no satisfactory explanation was given apart from an invitation to make speculations proffered on behalf by the applicant.  Even if, where there is some real doubt, one took the view that the benefit of the doubt might be given to the applicant in some circumstances, in the present case, the cumulative effect of the written evidence in the form of the employment book, and the inherent probabilities, support a conclusion that there has been no reviewable error made and that the applicant does not have a well-founded fear of persecution.

15. Accordingly, in my view, the appropriate order of the Court is that the application should be dismissed with costs.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin J.

Associate:

Dated:            7 January 2000

Applicant appeared in person
Counsel for the Respondent:	R Beech-Jones
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	17 December 1999
Date of Judgment:	17 December 1999