Vassiliev v Minister for Immigration & Multicultural Affairs [2001] FCA 424

FEDERAL COURT OF AUSTRALIA

Vassiliev v Minister for Immigration & Multicultural Affairs [2001] FCA 424

ANDREI VASSILIEV v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V726 of 2000 RYAN J MELBOURNE 10 APRIL 2001

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V726 of 2000

BETWEEN: ANDREI VASSILIEV

Applicant

AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: RYAN J

DATE OF ORDER: 10 APRIL 2001

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs, to be taxed in default of agreement. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V726 of 2000

BETWEEN: ANDREI VASSILIEV

Applicant

AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: RYAN J

DATE: 10 APRIL 2001

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 This is an application for review of a decision of the Refugee Review Tribunal ("the Tribunal"), affirming a decision of a delegate of the respondent Minister not to grant the applicant a protection visa. The applicant is a citizen of the Russian Federation and is now aged 39 years. He arrived in Australia on 6 August 1998 and on 4 November 1999 applied for a protection visa. That application was refused on 27 January 2000 and on 21 February 2000 the applicant applied to the Tribunal for a review of that refusal. 2 In its reasons for decision published on 9 August 2000 the Tribunal noted that the applicant's claims had been accurately summarised by the delegate of the Minister as follows; · "He initially came to Australia on the invitation of a friend not realising the events that would soon take place in his 'home country' Dagestan. · The break-up of the Soviet Union uncovered the contradictions and oppositions in Dagestan where he began to feel unwelcome due to his Russian ethnicity. · Dagestan is mainly populated by Muslim people and at this time it became very difficult for ethnic Russians to find employment. He was therefore forced to move to Moscow. · In Moscow he was regarded as a Dagestani, a "black-bottomed" one, which is the term used for people from the Caucasus. · Since his arrival in Australia he has discovered that Dagestan is facing attacks by Islamic militants from neighbouring Chechnya. If he returns to Russian he will be 'called up' either in Moscow or Dagestan and he hates the idea of being involved in manslaughter of any kind. Being an ethnic Russian in the Caucasus means there is a good chance he will be murdered by Islamic terrorists, therefore he cannot return to Dagestan. He is also unable to return to Moscow due to Russia's attitude towards those from the Caucasus. He fears harm from the Islamic extremists, Russian nationalists and those local people in Dagestan who blame Russians for the hostilities. The Russian authorities are unable to protect refugees and recent practice shows that they will use local people as a shield for their troops." 3 In its "Findings and Reasons" the Tribunal accepted the applicant as a credible witness and accepted that "the events and situation he described correspond to reality". The Tribunal also accepted that the applicant had a subjective fear of persecution because of his Russian ethnicity or the manner in which others perceived his ethnicity. It seems that the applicant considers that his birth place, Makhachkala, the capital of Daghestan, constitutes a hostile environment for him as a Russian, because Muslims predominate there and there is a risk that Muslim extremists will mount revolutionary attacks to overthrow the existing government. 4 However, the Tribunal noted that the applicant acknowledged that Muslims have been a part of Daghestan for centuries. The Tribunal also concluded on the basis of "country information" that Muslim activism appears to have been exaggerated or exploited for political ends in both Chechnya and Daghestan. Accordingly, the Tribunal concluded: "The Tribunal is not satisfied that in the reasonably foreseeable future any extremist activism by the Muslims in Dagestan would adversely impact on the applicant even if he were in his birth place Makhachkala. The Tribunal finds that there is not a real chance that the applicant would face Convention persecution as a result of any activity by Muslim extremists. His fears of being an ethnic Russian in Daghestan are not supported by any independent evidence and he did not report any incidents which, during the time he spent in Daghestan, could have been construed as Convention persecution because of his Russian ethnicity. There is no evidence before the Tribunal that this situation would change in the reasonably foreseeable future. He claimed that he was discriminated against in employment, but his employment history shows continuous employment in areas in which he was qualified. The Tribunal thus finds that there is not a real chance that he would be persecuted for reasons of his ethnicity in Daghestan." 5 The Tribunal then proceeded to consider the second basis advanced by the applicant for his fear of persecution which was the prospect of his being called up for military service. As to that matter the Tribunal made these observations: "The applicant has claimed fear of being re-called to the army and being asked to fight. The Tribunal notes that the applicant completed his military service obligations for the general call up while he was a student at university, he has further been called for retraining, as is the normal practice, and has participated in that training. He has not been recalled since the late eighties. He claims discrimination in actually being called for re-training and in the sorts of tasks and activities given to Russians during this re-training. Conscription or compulsory military service, does not of itself constitute persecution. Without evidence of selectivity in its enforcement, conscription will generally amount to no more than a non-discriminatory law of general application." 6 The Tribunal then referred to the judgment of Branson J in Mijoljevic v Minister for Immigration and Ethnic Affairs [1999] FCA 834 (unreported 25 June 1999) at [23], in which her Honour noted: "This Court has on a number of occasions recognised that the enforcement of laws providing for compulsory military service, and for the punishment of those who avoid such service, will not ordinarily provide a basis for a claim of persecution within the meaning of the Refugees Convention (see, for example, Murill-Nunez v Minister for Immigration and Ethnic Affairs (1995) 63 FCR 150; Timic v Minister for Immigration and Multicultural Affairs [1998] FCA 1750). See also Hathaway, The Law of Refugee Status at para 5.6.2." 7 After remarking on the absence of evidence that the applicant had been required to do anything by way of military service above or beyond what was required of others subjected to that obligation and the absence of anything to suggest that the applicant would be targeted for conscription in the future as a result of his ethnicity, the Tribunal concluded that the applicant's claims in relation to military service did not fall within the scope of the Convention. 8 Before this Court the applicant disputed that finding and asserted that, as an officer in the military reserve, he was subject to "call up" until attaining the age of 45. However, the applicant acknowledged that evidence of that matter was not before the Tribunal. In any event, a differential liability attaching by reason of the applicant's status as a reserve officer does not relevantly distinguish him from other reservists to whom the same liability attaches. 9 The applicant also contended at the hearing before the Court that the Tribunal, in its reasons, underestimated the risk of violence in Daghestan from Muslim extremists. However, he conceded that, since the overthrow of the Communist Soviet system, some local government leaders in Daghestan openly acknowledged their adherence to Islam which I take to be an indication of reduced likelihood of efforts by the Muslim majority to seize power by force. In any event, the assessment of that risk was a question of fact for the Tribunal and I have been unable to discern any error of law in its approach to that question. 10 The final matter considered by the Tribunal was discrimination against the applicant as a Daghestani in Moscow. As to this matter, the Tribunal said: "The applicant's claims of discrimination in Moscow for being treated as a Dagestani also do not fall into the category of Convention persecution. The applicant initially claimed that he was forced to move to Moscow because of problems with Muslims as an ethnic Russian in Daghestan. However, at the hearing he related how he went to Moscow to improve his employment situation and at the insistence of a friend who was setting up a business in Moscow. The applicant reports a number of unpleasant incidents in Moscow, especially in relation to his obtaining household registration, yet he organised for his mother to move to Moscow with him a couple of years ago. He also added at the hearing that while attending a birthday party they were raided by the police and treated in a shoddy manner because the police thought they were Chechnyans. As unpleasant as the incidents appear to be, the Tribunal finds that they do not constitute Convention persecution. This also applies to the occasional insults because of his Daghestani birthplace. The Tribunal finds that the harm suffered is not of the type or severity to constitute Convention persecution. Therefore, there is not a real chance that he would face Convention persecution should he return to Russia." 11 In the hearing before this Court the applicant affirmed that people from the Caucasus, including Daghestanis, who moved to Moscow, were exposed to ridicule and, in some instances, to hostility from the police who, by contrast with Australia, appeared omnipresent. Expatriate Caucasians, he said, had to resort to bribery to obtain civil rights like household registration. The applicant was inclined to submit that the Tribunal's findings in this respect had been understated, but that again was a question of fact for the Tribunal. Since it was open to the Tribunal to find that the matters which it identified were not sufficiently systematic or repressive to constitute persecution within the meaning of the Convention, I am unable to discern any error of law in the Tribunal's application of the Convention to the facts found by it. 12 I feel considerable sympathy for the applicant, who, the Tribunal noted, was a witness of truth and who did not attempt to overstate his case before this Court. However, in the absence of any demonstrable error of law I am unable to accede to the application for review. Accordingly, the application must be dismissed with costs. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.