BARSKAIA v Minister for Immigration and Multicultural Affairs

[1999] FCA 606

FEDERAL COURT OF AUSTRALIA

BARSKAIA v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS [1999] FCA 606

MIGRATION – Refugee Review Tribunal found that the applicant did not have a well founded fear of persecution – whether  Tribunal erroneously  interpreted test as requiring a course of systematic violation of human rights – evidence that applicant had been assaulted in her country of origin – whether Tribunal’s failure to expressly address question of whether attacks were inflicted for a Convention reason amounted to a breach of s 430

Migration Act 1958 ss 36(2), 430, 476(1)(a), 476(1)(e)

Ibrahim v Minister for Immigration and Multicultural Affairs (Full Court, unreported, 9 April 1999) considered
Minister for Immigration and Multicultural Affairs v Hamad (Full Court, unreported, 26 March 1999) considered
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 considered
Mohamed v Minister for Immigration and Multicultural Affairs (1998) 83 FCR 234 considered
Murugasu v Minister for Immigration and Ethnic Affairs (Wilcox J, unreported, 28 July 1987) considered
Abdalla v Minister for Immigration and Multicultural Affairs (1998) 51 ALD 11 cited
Chopra v Minister for Immigration and Multicultural Affairs (Full Court, unreported, 23 April 1999) followed
Applicant A and Another v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 followed

SVETLANA BARSKIA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 776 OF 1998

MATHEWS J
12 MAY 1999

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 776 OF 1998

BETWEEN:	SVETLANA BARSKAIA Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	MATHEWS J
DATE OF ORDER:	12 MAY 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The appeal be dismissed.

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 776 OF 1998

BETWEEN:	SVETLANA BARSKAIA Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	MATHEWS J
DATE:	12 MAY 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant seeks judicial review of a decision of the Refugee Review Tribunal (the Tribunal) which affirmed a decision of the respondent’s delegate refusing an application for a protection visa.

2. The applicant is an ethnic Russian who was born in Latvia and lived there until her departure for Australia. She was unable to obtain Latvian citizenship and travelled to Australia on a Soviet passport. She arrived in Australia on 6 November 1997 approximately one month after her husband, Ernest Boguslavskis. On 10 December 1997 she applied for a protection visa. This was refused by the respondent’s delegate on 30 January 1998. A similar application from her husband had been refused four weeks earlier, on 2 January 1998. Both of them applied to the Tribunal for review of these decisions. On 15 May 1998 the Tribunal conducted a hearing at which both the applicant and her husband gave evidence. On 8 July 1998 the Tribunal affirmed the delegate’s decision to refuse a protection visa.

3. Much of the material relied upon by the applicant in support of her application for judicial review is relevant also to Mr Boguslavskis’s application. However there were some differences in the material before the Tribunal, and the Tribunal delivered separate decisions in each case, as it was bound to do. The appeals to this Court were, by consent, heard together and many of the issues raised are common to both cases. However there are sufficient variations to again require that separate judgments be delivered by this Court.

   FACTUAL BACKGROUND

4. The applicant, who is an ethnic Russian, was born in Latvia on 2 July 1975. She lived permanently in Latvia until she came to Australia, but was nevertheless unable to obtain Latvian citizenship.

5. The applicant went to a Russian school in Latvia and later obtained an accountancy qualification at a business college. She was a champion swimmer and represented Latvia in freestyle swimming on a number of occasions. However in her evidence before the Tribunal she described being “squeezed out” of the Latvian team. The Latvians perceived it as a “disgrace”, she said, to be represented by a Russian, and she eventually abandoned competitive swimming.

6. The applicant said that she and her husband faced “numerous insults, hatreds and malice”. In her evidence before the Tribunal she described an incident in which she and her husband returned home to find their parents tied up, the apartment vandalised and swastikas painted on the walls. The next day they received abusive telephone calls telling them to go back to Russia.

7. In February 1997 the applicant and her husband were assaulted on their way home from a friend’s place. She described the assault in her statement in the following terms:

   In the beginning of 1997 (in February) my husband and I were going home from a friend’s place. On the way home a few people of Latvian nationality appeared. They asked him something. Then one of them grabbed me and others started beating my husband yelling out swearings and insults. As a result of the “accident” I was bleeding and had a serious twist. My husband suffered much more. The next day his body was covered in bruised [sic], the eyes were swollen and bruised. The attempt to apply to the police was useless. Moreover instead of a help we were told something like “say thanks that you are still alive” and “lots of Russians like you stroll around just to complain about Latvians”. Even this episode confirms that in Latvia people are divided into two categories – Latvians and non‑Latvians. One can see that Latvians may do whatever they want – to beat, to humiliate, even to kill and do not take any responsibility. Having understood the fact that a Russian (particularly if he/she is not a citizen but “an illegal immigrant”) absolutely defenceless, that no one will protect that person from numerous Fascists bands – makes the one’s life unbearable, creates an atmosphere of fear …

8. A further assault took place after the applicant’s husband had left Latvia for Australia. The applicant’s description, in her statement, is as follows:

   After my husband fled Latvia (we had no [sic] enough money for two airline tickets. We also thought that Ernest is in more danger than me. Therefore we decided that Ernest should escape first) my friend and I were attacked by a few dregs of Latvian nationality. At first they began bothering us, then started insulting us and then threatening us. After they grabbed us and started dragging us towards some dark passage we began crying for help. As a result of the assault my friend suffered broken arm and I had some bruises. I did not go to the police because I was sure that they would not investigate the case, that it would be useless to apply to nationalistic Government authority, but my friend, Oksana Poljakova, decided to apply. She said to me later that she was called a prostitute and advised: “not to have a stroll under influence of alcohol at night time???”

9. In her evidence before the Tribunal the applicant described a third assault which, she said, occurred when she applied for Latvian citizenship in about March 1997. She went to the relevant office where she was offered a glass of juice by an official. Afterwards she felt dizzy and she fainted. When she woke up she was lying on the floor. Her top was undone. She asked “what happened” the official smiled at her and said “Russians have to pay with their bodies for the right of gaining Latvia”. The applicant was shocked and distressed by this incident. Eventually, in November 1997, about one month after her husband had left for Australia, the applicant obtained an airline ticket and flew to Australia, where she arrived on 6 November 1997.

   Relevant criteria

10. The criteria for the grant of a protection visa are to be found in s 36(2) of the Act and subclass 866 in Schedule 2 to the Migration Regulations. Both provisions require that the applicant for a protection visa be a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (the Convention). Article 1 of the Convention defines a “refugee” as any person who “… owing to a 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 …”.

11. The Tribunal found that the applicant failed to meet this criteria.

    The Tribunal’s decision

12. The Tribunal in its decision described the criterion referred to above. It discussed some of the cases relevant to the criterion and then addressed the evidence adduced in this particular case. This consisted of the applicant’s visa application, the evidence of herself and her husband, and certain articles and publications produced by Mr Boguslavskis. The Tribunal also had access to independent country information which provided considerable details about Latvia’s recent history and the problems faced by Russian minorities in the Baltic states. Under the heading of “Findings and Reasons” the Tribunal made findings adverse to the applicant on two issues which inexorably led to its affirming the delegate’s decision. The first related to the applicant’s inability to obtain a job in her specialist field of accountancy and her claim that she had been in effect barred from the Latvian swimming team because of her Russian ethnicity. The Tribunal accepted that the applicant was unable to obtain employment in the position for which she was trained, however it commented that she was able to study, obtain qualifications and travel on numerous occasion with the Latvian swimming team. It could find no independent evidence to suggest that Latvians discriminated against ethnic Russians in the selection of their sporting teams. It concluded on this issue:

    … I am satisfied that her treatment does not amount to a serious restriction on her right to earn a livelihood or to continue in a sports based career. I accept that the applicant has not obtained Latvian citizenship, but she is able to live and work in Latvia, as a non‑citizen. I find that she has not been refused citizenship and I find that she has not suffered discrimination in this regard.

    This finding is not challenged in these proceedings.

13. The Tribunal then proceeded to deal with the applicant’s claim that she suffered insults and abuse and that she and her husband had been physically assaulted. The Tribunal’s findings in this regard were central to the issues before this court:

    I have read the extract articles provided by the applicant and viewed the video. I accept that there is some discrimination against ethnic Russians in Latvia and occasionally violence is directed against ethnic Russians. The applicant is anxious that she will not be the victim of such attacks. The applicant to date has been the victim of three attacks, the first when she went to apply for citizenship, the second occasion when she and her husband were attacked and the third when she and her girlfriend were attacked. Whether harm or discrimination amounts to persecution in a Convention sense is a question of fact and degree and it suggests a course of systematic conduct aimed at an individual or a group See: McHugh J in Chan Yee Kin v MIEA (1989) 169 CLR 379. I have found no independent reports to suggest that there is sustained or systematic human rights violations against ethnic Russians by the Latvian government or the Latvian people or that the Latvian police do not protect the ethnic Russians. I am not satisfied, on the evidence before me, that the applicant has a well‑founded fear of persecution within the meaning of the Convention.

    The Tribunal finds that the evidence before it does not support a finding that if the applicant returns to Latvia, she would face a real chance of discrimination in Latvia amounting to persecution on the ground of her race, ethnicity or any other Convention ground. The Tribunal concludes that the applicant does not face a well‑founded fear of persecution owing to her race or any other Convention related reason.

14. The Tribunal therefore concluded that the applicant is not a person to whom Australia has protection obligations under the Refugees Convention. It accordingly affirmed the delegate’s decision not to grant a protection visa.

    The grounds of appeal

15. In her application to this court the applicant relies on two grounds, first that there was an error of law under s 476(1)(e) of the Act and secondly that there was a failure to observe requisite procedures under s 476(1)(a) of the Act. The first ground relates to what is said to be the Tribunal’s erroneous finding that, in order for there to be persecution under the Convention, there must be “a course of systematic conduct aimed at an individual or a group” and/or a “sustained or systematic violation” of human rights. The second ground is that the Tribunal failed, in breach of s 430 of the Act, to make findings on material questions of fact namely whether the attacks upon the applicant were by reason of her ethnicity.

    Did the Tribunal apply an incorrect test?

    Applicant’s submissions

16. In relation to this ground Mr Poynder, who appeared for the applicant, referred to the recent judgment of the Full Federal Court in Ibrahim v Minister for Immigration & Multicultural Affairs (Full Court, unreported, 9 April 1999). In particular Mr Poynder relied upon the following passages (pp 9‑10):

    In Minister for Immigration & Multicultural Affairs v Hamad (Full Court, unreported, 26 March 1999) the Court has considered the significance of the use of the words “systematic persecution” in certain decisions as they pertain to the test for refugee status. As the Court there noted, that expression appears to have been introduced in the reasons for judgment of Wilcox J in Murugasu v Minister for Immigration & Ethnic Affairs (unreported, 28 July 1987) and its history has been discussed in other cases referred to in Hamad. In the light of the observations in Guo (above), it is important to note that the expression “systematic” may be used in alternative senses. One sense is that of deliberate or premeditated or intended conduct, of acting or carrying out actions with a premeditated intent. The other sense is that of habitual behaviour according to a system, regular or methodical. Where those words have been used to indicate the former sense, there will be no error of law. Where those words have been used to indicate a requirement that it is necessary to show a series of incidents or a course of conduct over time involving persecution, so that persecution will not be shown to exist if there is only an isolated incident, it will demonstrate an error of law on the part of the Tribunal. Hamad is one case where such an error was demonstrated.

17. The Court proceeded to discuss the reasons of the Tribunal in that matter, and continued (pp 10-11):

    Those reasons indicate, in our judgment, that the Tribunal used the expression “systematic conduct” as requiring a course of conduct demonstrating over time a systematic or methodical attack upon members of the Rahanwein clan for reasons of that clan membership before it would be satisfied that the appellant’s claim would be made out. In the light of the decision in Hamad, we find that approach is erroneous. The Tribunal should have determined whether the particular experiences of the appellant were caused by persecution for Convention reasons, and in the light of those findings it should have considered whether at the time of the determination of the application there was a real chance (as that term has been explained in Chan) of the appellant being persecuted by reason of his membership of the Rahanwein clan if he were to return to Somalia.

18. According to Mr Poynder, the Tribunal in this case has made precisely the same error as was identified in Ibrahim and in the earlier case of Minister for Immigration and Multicultural Affairs v Hamad (Full Federal Court, unreported, 26 March 1999). The fact that the Tribunal contrasted “a course of systematic conduct” with “occasional human rights abuses” indicates, Mr Poynder submits, that the Tribunal was using the word systematic in its impermissible sense.

    Respondent’s submissions

19. Mr Reilly for the respondent pointed out that the Tribunal’s reference to “systematic conduct” derived from the judgment of McHugh J in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 430. Put into context, the Tribunal’s use of the word “systematic” was, according to this submission, unexceptionable. Mr Reilly submits that if a group of which an applicant is a member is systematically or regularly persecuted this is relevant both to the existence of a Convention motive for such persecution and also to whether a fear of future persecution by reason of membership of the group is well‑founded. The Tribunal in the present case held that there was no systematic persecution of ethnic Russians in Latvia and that the personal experiences of the applicant did not rise to the level of persecution. There was no error in this finding.

    Discussion

20. The Tribunal appears to have accepted that the applicant’s fear of persecution was genuine. Accordingly, the subjective aspect of the requirement that she have a “well‑founded fear” of persecution was satisfied. It is the objective aspect of the criterion which the Tribunal found was lacking, namely that there was a “real chance” that the applicant would suffer persecution in Latvia.

21. The Convention does not define the term “persecution”. Mason J in Chan commented that persecution involves “… some serious punishment or penalty or some significant detriment or disadvantage…” (Chan, p 388). His Honour continued “[o]bviously harm or the threat of harm as part of a course of selective harassment of a person, whether individually or as a member of a group subjected to such harassment by reason of membership of the group, amounts to persecution if done for a Convention reason. The denial of fundamental rights or freedoms otherwise enjoyed by nationals of the country concerned may constitute such harm …” (Chan, p 388).

22. The applicant’s primary submission, as already mentioned, is that the Tribunal required the applicant to establish a “systematic” in the sense of a habitual course of conduct as a precondition to showing that there was a “real chance” of persecution if she returned to Latvia. This, according to the court in Ibrahim, is said to have been an erroneous requirement.

23. There have been a number of recent cases in this Court which have discussed the meaning and relevance of the word “systematic” in this context. In addition to Ibrahim and Hamad, referred to above, the issue has been discussed in Mohamed v Minister for Immigration and Multicultural Affairs (1998) 83 FCR 234, in Abdalla v Minister for Immigration and Multicultural Affairs (1998) 51 ALD 11 and, most recently, in Chopra v Minister for Immigration and Multicultural Affairs (Full Court, unreported, 23 April 1999).

24. As Hill J observed in Mohamed, different considerations apply in relation to acts of persecution against an individual on the one hand and against a group to which an individual belongs on the other. His Honour in that case referred to McHugh J’s observation in Chan that a single act of oppression might suffice to show persecution. His Honour continued (Mohamed, pp 241‑242):

    … Where the fear of persecution is in respect of an applicant’s membership of a group, acts of systematic harassment against the group will show the fear to be well founded. There need not be any particular act in fact perpetrated against the individual. Where the fear of persecution is in respect of an individual’s political or religious beliefs the resolution of the question whether the fear is well founded will be assisted if it is shown that a course of systematic conduct has been actuated against that individual. But it is not a necessary prerequisite for success in an application. Evidence that individuals with a similar belief suffered discrimination amounting to persecution would likewise justify the conclusion that the individual’s fear was well founded even if the individual himself or herself suffers only an isolated act of persecution or none at all. There is no requirement in law that, for an application for refugee status to succeed, the applicant must show a series of co‑ordinated acts directed at him or her which can be said to be not isolated but systematic.

1. A little later his Honour made the following observation (Mohamed, pp 242‑243):

   … Clearly where the issue is whether a particular act is persecution for membership of a particular group evidence that there is a systematic attack on that group will be most relevant to the issue of persecution. However, there are other instances where the Tribunal’s approach suggests that, for the applicant to succeed, it would be necessary in law to show the acts of persecution complained of by the applicant are themselves not isolated examples but part of a systematic attack against the applicant. If the issue is framed in terms of whether these acts are part of a systematic attack against the group to which an applicant belongs there can be no quarrel with the use of the word “systematic”.

2. In Mohamed the Tribunal had required the applicant to show that he had been a victim of a course of systematic (in the sense of repeated) persecution directed against him personally. This, Hill J found, was an error of law and the Tribunal’s finding was set aside.

3. With this background I turn to the Tribunal’s findings in this case. The relevant passage is quoted earlier. It was suggested by Mr Poynder that the Tribunal revealed its erroneous reasoning in the passage which reads “it [persecution] suggests a course of systematic conduct aimed at an individual or group”. The Tribunal purported to attribute this passage to McHugh J in Chan. However his Honour’s comments in that case were a little different. The passage contained in the Tribunal’s decision was in fact a direct quote from the judgment of Wilcox J in Murugasu v Minister for Immigration and Ethnic Affairs (Wilcox J, unreported, 28 July 1987). This phrase has since been found to be “too widely expressed”, but not necessarily erroneous. Whether the word “systematic” is erroneously used will depend upon the circumstances (Chopra). The mere use of the word by itself cannot be indicative of error. In this case the Tribunal, earlier in its decision, had commented that in appropriate cases persecution may be indicated by single acts of oppression. It therefore cannot be said that the Tribunal was necessarily in error when it referred to “a course of systematic conduct aimed at an individual or a group”. The real question is whether the Tribunal erroneously required the applicant to show that there had been a repeated course of persecutory conduct in order to establish that there was a “real chance” of persecution in Latvia.

4. An analysis of the Tribunal’s decision does not disclose any such error. The Tribunal referred to the insults and abuse which the applicant claimed to have suffered from ethnic Latvians and the acts of assault which she had suffered. As to violence against the group to which the applicant belongs, the Tribunal found that there was occasional violence directed at ethnic Russians. It also accepted that “… there is some discrimination against ethnic Russians in Latvia and occasionally violence is directed against ethnic Russians.” However it went on to say that “I have found no independent reports to suggest that there is sustained or systematic human rights violations against ethnic Russians by the Latvian Government or the Latvian people or that the Latvian police do not protect the ethnic Russians.”

5. The Tribunal’s use of the phrase “sustained or systematic human rights violations” was criticised by Mr Poynder as indicating that the Tribunal was applying an erroneous test. But, as Hill J pointed out in Mohamed, the question of whether a group to which an applicant belongs is subjected to sustained or systematic attacks is clearly a relevant consideration. It is only if the Tribunal elevates this consideration to a matter which must be established by an applicant, that error will be shown.

6. The Tribunal’s findings on this aspect of the matter might have been more felicitously and transparently expressed. But its meaning is relatively clear. The Tribunal was not satisfied that ethnic Russians as a group were subjected to systematic or sustained human rights violations. There was “some discrimination” and “occasional violence” directed against Russians. Having made this finding it was clearly open to the Tribunal to conclude, as it did, that the mere fact of being an ethnic Russian in Latvia was not sufficient to give rise to such a well‑founded fear. Nor was it prepared to find that the assaults committed upon the applicant were sufficient to give rise to a well‑founded fear of persecution. The Tribunal’s reasoning could, as I have already commented, have been more transparently stated. However its purport was, in my view, sufficiently clear to display that, given the beneficial construction which this court is required to apply, no error has been shown.

7. There is any event a further matter which Mr Reilly points to as providing a complete answer to the applicant’s submission that the Tribunal applied an erroneous test as to what constitutes a “well‑founded fear of persecution”. For the Tribunal noted that it could find no independent reports to suggest that, inter alia, “Latvian police do not protect ethnic Russians”. This must, in the circumstances, be taken as a finding that the applicant would be able to seek the protection of the Latvian police. This finding has not been challenged on appeal, nor could it be. It was clearly open for the Tribunal to reach this conclusion on the basis of the evidence before it. The independent evidence on the subject was all one way. The complaints in the applicant’s statement about the police reactions to her husband’s or her friend’s complaints were hardly sufficient to counteract this material, despite the strength of the language she used.

8. As Mr Reilly points out, this finding alone would be sufficient to deprive the applicant of any entitlement to a protection visa, even if error had otherwise been shown in the Tribunal’s reasons. As Brennan CJ said in Applicant  A  and Another v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 233:

   The feared “persecution” of which Art 1A(2) speaks exhibits certain qualities. The first of these qualities relates to the source of the persecution. A person ordinarily looks to “the country of his nationality” for protection of his fundamental rights and freedoms but, if “a well‑founded fear of being persecuted” makes a person “unwilling to avail himself of the protection of [the country of his nationality]”, that fear must be a fear of persecution by the country of the putative refugee’s nationality or persecution which that country is unable or unwilling to prevent. Then, Art 1C(5) provides that a refugee can no longer “continue to refuse to avail himself of the protection of the country of his nationality” if “the circumstances in connexion with which he has been recognized as a refugee have ceased to exist”. As the justification for the refugee’s not availing himself of the protection of that country is the existence of the relevant “circumstances”, those circumstances must have been such that the country of the refugee’s nationality was unable or unwilling to prevent their occurrence. Thus the definition of “refugee” must be speaking of a fear of persecution that is official, or officially tolerated or uncontrollable by the authorities of the country of the refugee’s nationality (35).

9. In the same case McHugh J made the following observation (Applicant A, pp 257‑258):

   … The Convention is primarily concerned to protect those racial, religious, national, political and social groups who are singled out and persecuted by or with the tacit acceptance of the government of the country from which they have fled or to which they are unwilling to return. Persecution by private individuals or groups does not by itself fall within the definition of refugee unless the State either encourages or is or appears to be powerless to prevent that private persecution. The object of the Convention is to provide refuge for those groups who, having lost the de jure or de facto protection of their governments, are unwilling to return to the countries of their nationality.

10. For the reasons given above I find that the first ground relied upon by the applicant has not been made out.

    Did the Tribunal fail to observe requisite procedures?

11. The applicant submits that the Tribunal failed to make findings as to whether the attacks described by the applicant were inflicted for a Convention reason. Mr Poynder urges that the question as to whether the applicant was targeted by reason of her ethnicity was a matter which went to the core of the issue as to whether she had a well‑founded fear of persecution, and was thus a matter upon which the Tribunal was obliged to make a finding in its decision. The applicant therefore urges that the Tribunal’s failure to make a specific finding on this matter constituted a breach of its obligation, pursuant to s 430 of the Act, to give reasons for its decision. It accordingly constituted a failure to observe requisite procedures under s 476(1)(a) of the Act.

12. It is correct that the Tribunal made no explicit finding that the attacks against the applicant were perpetrated for Convention reasons. However a reading of the Tribunal’s decision makes it clear that the Tribunal accepted this to have been established. The Tribunal referred to “some discrimination” against ethnic Russians and observed that “occasionally violence is directed against ethnic Russians.” It is important to note that the only evidence before the Tribunal as to acts of violence being perpetrated against ethnic Russians was that of the applicant and her husband relating to the attacks upon themselves. Accordingly, the Tribunal’s finding that violence is occasionally directed against ethnic Russians should be taken as a finding that the attacks upon the applicant and her husband were related to their ethnicity and were accordingly perpetrated for Convention reasons. It would undoubtedly have been preferable for the Tribunal to have made an explicit finding to this effect. But it cannot be said that it failed to address the matter. This being the case, I do not consider that a breach of s 430 has occurred.

13. Even if a breach of s 430 had occurred in relation to this issue, Mr Reilly submits, with some force, that it follows from the Tribunal’s finding that the applicant can seek the protection of the Latvian police, that a finding adverse to the applicant was inevitable in any event. This, he says, provides a complete answer to both grounds of appeal. I would be disposed to accept this submission. However in the light of my earlier findings it is unnecessary to do so.

1. It follows that neither ground relied upon by the applicant can succeed. I can find no error either in the Tribunal’s reasoning or in the conclusion that it reached. I therefore dismiss the appeal.

I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mathews.

Associate:

Dated:             12 May 1999

Counsel for the Applicant:	Mr N Poynder
Solicitor for the Applicant:	Legal Aid Commission
Counsel for the Respondent:	Mr T Reilly
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	27 April 1999
Date of Judgment:	12 May 1999