Khvostov, Vladimir v Minister for Immigration and Multicultural Affairs

[1998] FCA 86

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG190 of 1997

BETWEEN:	VLADIMIR KHVOSTOV Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	WILCOX J
DATE:	4 FEBRUARY 1998
PLACE:	MELBOURNE

EXTEMPORE REASONS FOR JUDGMENT

WILCOX J:  This is an application for review of a decision by the Refugee Review Tribunal refusing an application for recognition of refugee status.

The applicant, Vladimir Khvostov, was apparently born in 1958 in Kazakhstan, when it was a part of the Soviet Union.  He married a person of Russian ethnicity, his present wife, Ludmilla Khvostov, who was born in 1960.  They have a daughter, Victoria, who was born in 1984. 

Mr Khvostov made an application for refugee status on 24 October 1996.  He stated in his application that he was born in the Soviet Union and had no nationality; he was stateless.  The delegate of the Minister dealt with the matter on that basis, and on the basis that Latvia was the appropriate country for consideration in relation to a real chance of persecution. 

Mr Khvostov was a member of the Soviet army for a number of years.  He was sent to Latvia with the army in 1975.  After he left the army he continued to reside in Latvia, having in the meantime married his wife.  Mr and Mrs Khvostov were apparently not able to purchase freehold property in Latvia because they were not Latvian citizens, but they were able to lease premises.  They resided in their own home until their departure for Australia in mid-1996. 

It is apparent from the findings of the Tribunal that Mr and Mrs Khvostov were subjected to a measure of hostility from Latvians, apparently because of their Russian ethnicity; perhaps exacerbated by the fact that Mr Khvostov had previously been a member of the Soviet army.  However, Mr Khvostov did not claim they were ever detained or physically assaulted.  Although there was a question about whether or not they were able to maintain continuous employment, the Tribunal member found they were.  As I say, they were able to lease a house.

The Tribunal member reviewed the evidence given by Mr Khvostov.  It is fair to say he was not impressed with most of it.  Numerous matters asserted by Mr Khvostov were found, on investigation, to be incorrect; this was then conceded.  In the end, the Tribunal found Mr Khvostov and his family had not been subject to persecution, within the meaning of the Refugees’ Convention, and was not satisfied there was a real chance of persecution if they returned to Latvia.  These are findings of fact and no attack is made on them.  Two points only have been argued in support of the application for review.

The first point arises out of some evidence given by Mr Khvostov of an incident said to have occurred in February 1996.  He said one evening three men came to their house, two of them being policemen and the other being, or claiming to be, an officer of the agency that is responsible for the issue of internal passports.  He said this last person demanded and obtained his internal passport, put a diagonal cross through the internal visa and wrote the word "cancelled" and the date.  The person did not sign his name and did not affix any official seal.  Although this incident was said to have occurred in February, Mr and Mrs Khvostov were able to continue to reside in Latvia without incident until they left in June.  During that time they leased new premises.

In his reasons for decision the Tribunal member dealt with this incident in the following way:

“The delegate has also pointed to inconsistencies and additions in the Applicant's submissions.  The Tribunal shares the delegate's concerns.  Given the Applicant's predilection to distort the truth, the Tribunal concludes that it is most likely that the Applicant concocted the account of the officials holding him at gunpoint and that he entered the cancellation of his residence registration in order to enhance his refugee claims.  Even if the Tribunal is wrong in that conclusion, it would have concluded that it was unofficially cancelled by an irate official and that it had no effect on the Applicant's continued right to permanently reside in Latvia.  It finds that the Applicant was registered as a permanent non-citizen of Latvia in 1992 and that he still has the right to permanently live in that country.”

At a later point in the reasons the member wrote:  “The Tribunal does not accept that the Applicant and his family were accosted in February 1996 and had their residential registration cancelled.”

Mr Niall, counsel for the applicant, does not quarrel with the Tribunal's finding that the applicant was registered as a permanent non-citizen of Latvia in 1992 and retained the right to reside permanently in the country.  However, he seizes on the fact that the Tribunal considered the possibility it was wrong in its conclusion about the concoction of the incident to say the Tribunal ought also to have considered the consequence of error in relation to persecution.  He argues the Tribunal concedes the possibility of error and it was not enough to say this had no effect on Mr Khvostov's legal rights.  The Tribunal ought also to have asked itself "What would be the effect of the story being true?", on its view as to whether there was persecution.

It is important for a person making a decision about a refugee application to contemplate the possibility of error, but I think it goes too far to say that such a person has to tease out the implications of error in respect of each specific finding.  If this were required, the task of writing reasons for decision would become even more burdensome than it is now and reasons more lengthy and less comprehensible.  The Tribunal made a clear finding, albeit on the probabilities rather than beyond reasonable doubt, that the applicant concocted his account of the three men coming to his home.  The Tribunal member used the words:  “It is most likely that the applicant concocted the account”.  At a later point, the member said the Tribunal does not accept that the applicant and his family were accosted.  In other words, the Tribunal made a finding of fact, on the probabilities, that the incident did not occur.  I do not think it was incumbent on the Tribunal to then consider what the findings might have been had the incident occurred.

I asked Mr Niall what conclusion he would suggest would have flowed from contemplation of the possibility that the incident did occur; in other words, would it have been possible to say this incident demonstrated persecution or was an element in a pattern of persecution?  He was reluctant to make such a claim and understandably so.  As I have said, there is here no suggestion of physical violence towards any member of the family.  If the incident did occur, then it seems to have been an isolated event.  It would be difficult to argue it demonstrated such a pattern of conduct as to amount to persecution and probably difficult to link the incident with Mr Khvostov's Russian ethnicity.  But unless these things are done, a statement by the Tribunal of the possibility of error would get the applicant nowhere.  I do not think the Tribunal member fell into error in failing to deal with the possibility that the incident did occur, he having reached a clear view on the probabilities that it did not.

The other matter to which Mr Niall draws attention is the Tribunal's treatment of the question of “particular social group”.  An argument was apparently put to the Tribunal that there was a relevant social group comprising former officers of the Russian army.  Apparently the Latvian citizen legislation imposes restrictions on certain persons, probably including Mr Khvostov.  However, the restrictions are much more complex than a blanket discrimination against former Soviet army officers.  The restrictions do not apply to people who were resident in Latvia prior to their military service, nor to Latvian citizens or their relatives, nor to people who returned to Latvia sometime after their discharge from the Soviet army.  The restriction seems only to apply to non-Latvian citizens who were not previously resident in Latvia and remain there immediately after leaving the army.  As the Tribunal pointed out, such a group would include soldiers of many nationalities.  I do not think the Tribunal erred in concluding such a group of people was too general and disparate to be cognisable as a particular social group.

I add that, even if there was force in this point, it would not affect the result.  The application failed because the Tribunal was not satisfied there had been persecution in the past or there was a real chance of persecution in the future.  If there had been persecution in the past, it would have been easy to say it was because the applicant was a person of Russian ethnicity who had served in the Soviet army.  Nothing would be gained by erecting a social group of the description suggested. 

The problem, from the applicant's point of view, is that he was unable to convince the Tribunal of the possibility of persecution if he were returned to Latvia.  That being so, and Latvia having been selected as the country most favourable to his case,  rather than Russia for example, it seems to me there is no basis for impugning the decision of the Tribunal.  The application should be dismissed.

[An application was made for costs.]

The order of the Court will be that the application is dismissed with costs.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated:             4 February 1998

Counsel for the Applicant:	R M Niall
Solicitor for the Applicant:	Armstrong Ross
Counsel for the Respondent:	R Downing
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	4 February 1998