Primatchek v Minister for Immigration and Multicultural Affairs

[2000] FCA 517

FEDERAL COURT OF AUSTRALIA

Primatchek v Minister For Immigration And Multicultural Affairs [2000] FCA 517

LIOUBOV PRIMATCHEK v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N 1450 of 1999

MADGWICK J

24 MARCH 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1450 of 1999

BETWEEN:	LIOUBOV PRIMATCHEK APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	24 MARCH 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The parties are to bear their own costs.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1450 of 1999

BETWEEN:	LIOUBOV PRIMATCHEK APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	MADGWICK J
DATE:	24 MARCH 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(revised from transcript)

HIS HONOUR:

1. The applicant is an adult citizen of the Russian Federation who has come to Australia with her twelve year old grandson.  On 24 June 1997 she applied for a protection visa, which was refused by a delegate of the Minister for Immigration and Multicultural Affairs (“the Respondent”).  She applied to the Refugee Review Tribunal (“the Tribunal”) to challenge that decision, but on 9 December 1999 the Tribunal decided to affirm the delegate’s decision.

2. The applicant was born in 1946.  Her father's mother was of Chechen nationality within the former USSR, and her paternal grandfather was of the Tartar nationality.  Her mother was of Ukrainian nationality. 

3. The nub of one aspect of the applicant's claims, so far as one can relate them to the Convention, can be put, most favourably to her, in the following way:  because some of her papers refer to her father's name it is likely on occasions to come to the attention of persons in authority in Russia that she is of Chechen descent and as a result she is likely to be discriminated against by the Russian authorities. 

4. The Tribunal member appears to have accepted the plausibility in principle of a claim of that kind but found that the extent of the possible discrimination would not be severe enough to amount to persecution.  The Refugee Convention is not directed at helping all people who are discriminated against because of nationality, it is directed at assisting persons who are persecuted because of it; and persecution involves serious or really significant harm.  There are questions of degree involved.  These are well-settled matters of law.  There was ample material from which the Tribunal member might have concluded, as he did, that the extent of the discrimination was not severe enough to amount to persecution.

5. There is another aspect to the applicant’s claims.  For a good many years the applicant lived in Chechnya.  Before the outbreak of the Civil War she lived there with her second husband, a lieutenant colonel in the Russian Army.  While in Chechnya, and especially as hostility began to build between many of those of Chechen descent and many of those of Russian descent, she was insulted by persons of entirely Chechen descent, for being the daughter of a “turncoat” (because it was perceived that in some way her father, by marrying a non-Chechen, had denied the value of his own Chechen heritage).  As actual hostilities quickened, the applicant's husband went missing, one assumes in action, and the applicant and other members of her family felt obliged to flee Chechnya.  On the way, the applicant and members of her family were subjected to serious harm and indignity and witnessed appalling things.  Having, as I understand it, grown up in Siberia the applicant made her way to a Siberian city.  There is nothing to indicate that in that location she would have been subject to any significant degree of discrimination for her Chechen background. 

6. Her claim about her position in Siberia was somewhat different.  It was, as I understand it, that her husband had served with a particular unit of the Russian Army in Chechnya and, in relation to this particular unit, Chechen leaders had pledged that the families of all members of the unit would be located and killed.  The applicant referred to experiences in Chechnya when Chechens were able to taunt Russian soldiers by reciting to them the names of the members of their families.  She also pointed to the case of another officer whose family were ritually and particularly horribly murdered.

7. The applicant claimed to have been harassed herself by Chechen patriots. The harassment was said to include threatening phone calls from people with accents consistent with their being Chechens; being knocked down by a person whose appearance was consistent with that of being a Chechen and who, upon her inquiring why she was being attacked, told her that he was doing it for Chechnya.  She claimed also to have been severely beaten and to have been threatened with harm unless she gave sexual favours to a group, who were in effect, Chechen guerillas operating in Russia.  She was also asked to assist them to hide people and in other ways. 

8. In support of these claims, the applicant produced what she said was a hospital certificate which indicated that in early 1997, not long before she came to Australia, she sustained a severe head injury as a result of what she then said was a criminal assault.  She also produced letters from (what in Australia would be) a police officer advising her that, despite her complaints, which were broadly consistent with those she was making to the Tribunal, nothing could be done for want of evidence. 

9. The Tribunal member rejected these documents as forgeries.  In doing so he appears to have allowed his general disbelief of much of what the applicant had to say to infect his judgment, and I am prepared to assume that it was, in the circumstances of this case, a legal error to reject those documents on their face.  I do not doubt that in some cases it is correct, as has been held in Avas v Minister for Immigration and Ethnic Affairs (1998) 50 ALD 797, that the mere appearance of a document and other circumstances about it, appreciable by a lay person, can properly ground a conclusion that it is a forgery. But this case seems to be a long way from such an instance.

10. However, the fact remains that the applicant's story did, as the Tribunal member noted, “develop” from occasion to occasion and there were some aspects of it that might excite suspicion.  It seems to me that the Tribunal member rejected the applicant's credibility independently of the genuineness or otherwise of the documents.  Indeed my impression is, as I have said, that having so rejected her truthfulness on crucial matters, the Member allowed his judgment about the genuineness of the documents to be clouded by that anterior rejection.  The consequence is that, if one assumed that the documents were entirely correct and genuine, there is no reason to think that they might have changed the Tribunal member's mind about the applicant's overall credibility. 

11. Though not conceding that an error had been made, counsel for the Minister pointed out that a more fundamental answer to any such legal error was the point made by the Tribunal member:  at worst, the applicant faces the possibility that Chechen terrorists may be able to identify her because of her husband's role in Chechnya and, if such circumstances were to arise, she could seek the protection of the Russian authorities.  It has not been suggested that the “country information” does not support that conclusion.  As the Tribunal member pointed out elsewhere, no country can guarantee protection of its nationals and, if there is insufficient evidence as to the identity of persecutors for law enforcement authorities to act on, then no matter how willing and capable such authorities may generally be of protecting a person against persecution, protection will fail.  It is not against such irreducible failure to protect its nationals that the Convention is directed.

12. There is, in my view, no legal error in the approach of the Tribunal member in the passages to which I have referred.  The consequence is that such legal errors as there may have been, in the rejection of the disputed documents, could not be said to have affected the Tribunal member’s overall decision. 

13. The applicant drew attention to the human plight of her twelve year old grandson, now three years in this country, and I have sought to consider whether, given the applicant's inability to deal with Australian legal concepts, there was any way in which her case might be put, despite the absence of any statement of such a ground in the application for an order of review, in a way that could assist her and her boy.  The effort has only succeeded in raising for me further potential difficulties for her case and it is not profitable to go into them.  If there is to be consideration of the case of the applicant and her grandson on general humanitarian grounds, this is a matter for the Minister.  The applicant has eloquently painted a picture of grim living conditions in Russia and grim prospects for her young charge.  However, the Minister is better placed than I am, I must acknowledge, to consider these matters on a comparative basis. 

14. The conclusion to which I have come for these reasons is that the application must fail.  The order of the Court will be that the application is dismissed.  I would ordinarily order costs against the applicant but she has done no more, without resort to any skilled adviser, than come to the Court as a matter of last resort and in circumstances where there was material, even if ultimately not destructive of his final conclusions, in the Tribunal member’s reasons, apt to excite concern on the part of a disappointed applicant for refugee status.  That material may actually have involved, as I have assumed, legal error.  In these circumstances, the kinds of considerations referred to by Burchett J in Monte Granados v Minister for Immigration and Multicultural Affairs [2000] FCA 60, would seem to me to be apposite here.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:             24 March 2000

The applicant appeared in person.

Counsel for the Respondent:	T Reilly
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	24 March 2000
Date of Judgment:	24 March 2000