Lazarov, Vladimir Emilov v Minister for Immigration & Multicultural Affairs
[1997] FCA 428
•23 MAY 1997
CATCHWORDS
IMMIGRATION - Refugees - Bulgarian man married to Cambodian woman - Husband's fear of persecution in Bulgaria for political reasons - Husband's fear of wife's persecution in Bulgaria because Asian - Wife's fear of husband's persecution in Cambodia because of perceived wealth as Westerner - Relevance of country of nationality in determining refugee status - Relevance of membership of family unit in determining refugee status - Whether husband likely to suffer persecution in Cambodia by reason of being member of particular social group.
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565
Minister for Immigration and Ethnic Affairs v Wu (1996) 185 CLR 259
VLADIMIR EMILOV LAZAROV and PUTHAROTH SAM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS VG 686 of 1996
COURT:Sundberg J
PLACE:Melbourne
DATE:23 May 1997
IN THE FEDERAL COURT OF AUSTRALIA )
VICTORIA DISTRICT REGISTRY ) No VG 686 of 1996
GENERAL DIVISION )
BETWEEN:VLADIMIR EMILOV LAZAROV
Firstnamed Applicant
and
PUTHAROTH SAM
Secondnamed Applicant
AND:MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
COURT:Sundberg J
DATE:23 May 1997
PLACE:Melbourne
MINUTES OF ORDER
The Court orders that:
The application be dismissed.
The applicants pay the respondent's taxed costs of the application.
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 ) No VG 686 of 1996
GENERAL DIVISION )
BETWEEN:VLADIMIR EMILOV LAZAROV
Firstnamed Applicant
and
PUTHAROTH SAM
Secondnamed Applicant
AND:MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
COURT:Sundberg J
DATE:23 May 1997
PLACE:Melbourne
REASONS FOR JUDGMENT
SUNDBERG J:
Background
The first applicant is a 27 year old Bulgarian citizen. He is married to the second applicant, a 22 year old Cambodian citizen. They arrived in Australia on 8 June 1995. On 8 September the husband lodged an application for a protection visa with the Department of Immigration and Ethnic Affairs. The application has three parts. Each part bears the heading "Application for a Protection Visa". The first part, marked "B", has a further heading "Persons included in this application and family composition". In this part
the husband and the wife are both described as applicants, but only the husband claims to be a refugee. The second part, marked "C", has a sub-heading "Application for an applicant who wishes to submit their own claims to be a refugee". This part was completed by the husband alone. The third part, marked "D", has the sub-heading "Application for a member of the family unit", and contains an instruction that this part is for a member of the family unit who does not have a claim to be a refugee. The wife alone completed this part.
The Department acknowledged receipt of the application. It accorded it the file number 95/924, and noted that the husband and the wife were both included in the application. On 6 March 1996 the wife requested the Department to consider her own individual fears of persecution, and submitted part "C" of the application form, claiming to be a refugee. On 15 March the applicants' solicitors lodged with the Department a submission headed "Refugee Application - Applicant: Lazarov, Vladimir Emilov - Applicant (2): Sam, Putharoth". The submission enclosed information relating to "their application". It included information about the situation in Bulgaria and Cambodia. Two earlier submissions made in support of the husband's application (ie before the wife lodged her part "C") had presented material relating to Bulgaria alone. Further submissions were made on behalf of the husband and wife which included information about both countries.
On 24 May the Minister's delegate wrote to the husband refusing his application for a protection visa. The letter was headed "File number V95/924 and V96/490". The second number is presumably that given to the wife's application. The letter was not directed to the wife, and the Decision Record accompanying it treated the husband as the only applicant, though it referred to the contents of both files V95/924 and V96/490, and noted that the Case Officer had taken into account the husband's concern that both he and his
wife would be persecuted if they returned to Bulgaria, because of community attitudes to Asians.
On 13 June the applicants' solicitors wrote to the Refugee Review Tribunal referring to File numbers V95/924 and V96/490, and confirming that the husband and the wife were in receipt of "the Departmental decision to refuse them refugee status". The letter enclosed an application by the husband for a review of the decision. On 25 September the solicitors lodged a submission with the Tribunal referring to their clients' application for refugee status and enclosing newspaper articles and reports relating to racial discrimination in Bulgaria and Cambodia. In the submission it was claimed that when the parties travelled to Cambodia to escape persecution in Bulgaria, the husband, rather than the wife, had become the victim of persecution on the ground of race.
On 9 October the Tribunal affirmed the delegate's decision not to grant a protection visa to "the applicant or his spouse". The Tribunal treated the delegate as having decided that neither the husband nor the wife was a person to whom Australia has protection obligations under the Convention relating to the Status of Refugees. Although in its reasons the Tribunal treated the husband as the only applicant, it is clear that it considered each spouse's entitlement to refugee status. The husband and wife seek a review of the Tribunal's decision by this Court.
Although it is not clear from the material before me that the wife's application was ever actually refused or, if refused, reviewed by the delegate, the Tribunal's reasons are explicable only on the basis that it was reviewing a decision to refuse refugee status to the wife in her own right, as well as to the husband. The treatment of the wife's application by the Department and the delegate was not mentioned before me, and counsel proceeded
on the same basis as did the Tribunal. I too propose to follow this course, and to treat the matters before me as reviews of the Tribunal's decision to affirm the delegate's decisions not to grant a protection visa to the husband and not to grant a protection visa to the wife.
Evidence before Tribunal
(a)The husband
The husband claimed that in 1989 he joined a student organisation opposed to the communist regime in Bulgaria, and that he became a leader of the organisation. During anti-communist demonstrations between 1989 and 1992 members of the group, including the husband, were beaten, although he was not among those who were arrested. When the communist regime was overthrown, the students supported the new government, but came to realise that it was merely the former government in a new guise, still resorting to dictatorial methods. The students continued to fight for democracy.
The husband and wife married in 1994. The husband was able to leave Bulgaria for Cambodia after paying bribes to obtain a false document stating that he had no obligations to do military service as he was a student.
After the husband's departure, elections in Bulgaria in late 1994 confirmed that the former communists were entrenched in power. He believed he would be harmed if he returned to Bulgaria because he is anti-communist. He submitted reports from human rights organisations in support of his concern. He was also worried that he would be imprisoned and then forced to do extended military service because he had left the country without fulfilling his military obligations, although he was not so concerned about having to do his service as such. Rather he was worried that while he was away his wife would have no protection from harassment and discrimination on account of her race. The husband
claimed to have been attacked with knives and chains in 1990 because he was friendly with a Laotian.
The husband and wife could not live in Cambodia because that country has no immigration programme, and in any case Westerners are the subject of kidnapping, robbery and murder there. The husband said that after he went to Cambodia he felt vulnerable to attack, and following the withdrawal of UNTAC in 1993 all foreigners became the subject of hatred and abuse by Cambodians. He and his wife had difficulty obtaining work, and they were underpaid for the work they did obtain. While they were working at an hotel, there was a fire in a room in which they had formerly stayed. They believe the fire was directed at them, and resigned because the owner would not provide them with proper protection.
(b)The wife
The wife had lived in Bulgaria, where her parents who were diplomats were posted, from 1981 until she left for Cambodia in late 1994. In support of her claim that she would face persecution in Bulgaria, an extract from a 1995 Amnesty International report was submitted which referred to attacks on an African-American, three Arabs and a group of gipsies. She said she had had to leave Bulgaria because of political persecution and racial discrimination. She could not live in Cambodia because her husband was subject to persecution there because of racial discrimination.
According to the wife, racial discrimination against Asians in Bulgaria was a consequence of an influx of Vietnamese workers. The Vietnamese exploited the rationing system and created a highly profitable black market in goods such as tobacco and alcohol. This caused resentment among the ethnic Bulgarian population and there was increasing
discrimination. Articles detailing attacks on Vietnamese in early 1991 were submitted in support of this claim. Some of the wife's student colleagues had been beaten in 1993 because they were Asian or black. The wife was insulted many times because she is Asian, and on one occasion she believed she was being followed by two men, but eluded them.
The Tribunal's reasoning
The Tribunal set out the definition of "refugee" in the Convention, quoted passages from Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 espousing the "real chance" of persecution test and explaining the meaning of "persecution", and noted that whether a person is a refugee is to be decided upon the facts existing at the time of the determination.
The Tribunal noted that the claims for refugee status were largely predicated on the chances of the "respective spouses of the applicants" being persecuted in countries of which they are not nationals. The husband based his claims on persecution of his Cambodian wife in Bulgaria, where she is not a national, and the wife based her claims on persecution of her husband in Cambodia, where he is not a national.
The Tribunal expressed the view that the husband and wife each has protection from persecution in his or her own country of nationality. While it was proper to extend protection obligations to family unit members of a successful applicant who has been assessed against his or her country of nationality (see Migration Regulations, Sch 2 regs 866.112 et seq), it was not correct to make an assessment of refugee status on the fictional basis of an applicant being in a country where he or she is not a national and has no right
to live at the time of determination. Despite the Tribunal's opinion on this point, it went on to consider "all the claims in relation to both countries".
(a)Bulgaria
wife's race
The Tribunal noted that the wife had lived in Bulgaria from 1981 to 1994. She said that racial relations were normal until the influx of Vietnamese workers gave rise to difficulties. While she was insulted on occasions, and once believed she was being followed, she was never physically attacked. Her fears of racial discrimination did not deter her from returning to Bulgaria at the end of 1993 after a visit to Cambodia. The Tribunal noted that in his initial written submission, the husband did not claim that one of his reasons for leaving Bulgaria was that his wife was the victim of racial discrimination. The Vietnamese workers had left Bulgaria by 1992, thus removing the cause of attack perpetrated upon those of Asian appearance. The Tribunal concluded that while the wife might be insulted from time to time, her past experiences and the isolated nature of attacks on foreigners meant that there was not a real chance of persecution on account of her race if she were to return to Bulgaria.
husband's obligation to perform military service
The husband did not rely on this as an independent claim. Rather he said that his wife would be subjected to persecution while he was doing his service and was unable to protect her.
husband's political opinions
Although fear of persecution on account of his political opinions was the claim made in the husband's initial submission, it appears that before the Tribunal it was not put at the
forefront of his case. His main concern was said to relate to his wife's feared persecution. In any event, the Tribunal accepted that he had been beaten during demonstrations, though the last time this had occurred was in 1992. The Tribunal noted that the husband had remained in Bulgaria for a further two years or more, during which time he had finished a five year university course and had undertaken two further courses. He did not claim to have been harassed during this time, and had been able to leave the country through the usual security procedures, with a valid passport and without hindrance, notwithstanding that he had provided a false military clearance to obtain his passport. The Tribunal concluded that he was of no interest to the Bulgarian authorities when he left and did not then face a real chance of persecution. There was no evidence that there had been a change in either his circumstances or those affecting Bulgaria which would lead to the conclusion that a real chance of persecution had arisen since he left.
The Tribunal referred to a number of publications demonstrating that members of the former communist regime have maintained or regained positions of power and influence in Bulgaria. However it accepted evidence that one of the major reasons for this was that the former communists were well qualified for office. In any event, the former communists had now been democratically elected. The Tribunal set out extensive extracts from the US Department of State's 1995 report on Human Rights Practices in Bulgaria (March 1996) in which it was stated that Bulgaria is a parliamentary republic ruled by a democratically elected government, that in 1992 President Zhelev, former chairman of the Union of Democratic Forces, was elected to a five year term in the country's first direct presidential election, that in the December 1994 elections the former communists won a majority of seats and formed a government, that the judiciary is independent though it continues to struggle with structural and staffing problems, that the government
generally respects the human rights of its citizens, though problems remain in some areas, that the government generally respects the constitutionally enshrined right to peaceful assembly, that permits for outdoor rallies are routinely granted to most legally registered organisations, that vigorous political rallies and demonstrations are a common occurrence and take place without government interference, and that the government has undertaken to respect the rights of individuals and groups freely to establish their own political parties or other political organisations.
On the basis of this information the Tribunal concluded that the applicant would be able to pursue his political actions for greater democracy without there being a real chance of persecution were he to return to Bulgaria.
(b)Cambodia
husband a Westerner
The Tribunal did not accept that the fire in the hotel room previously occupied by the husband and wife had been directed at them, noting that this claim was not repeated at the hearing. It accepted that foreigners are subjected to robberies in Cambodia, though this is largely confined to rural areas. The Tribunal noted consular advice that foreigners should take care moving around after dark and should not venture outside the capital except to specified tourist areas. It did not accept that were the husband to be robbed it would be for a Convention reason. Rather it would be motivated by his perceived wealth. In this connection the Tribunal referred to the decision of the Full Court in Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565. It noted that one of the reports the husband submitted referred to the theft of the Singaporean ambassador's car, which indicated that it was not only Westerners who are subjected to robbery.
The Tribunal concluded that notwithstanding the sense of lawlessness that reports indicate abounds in Cambodia, there was not a real chance that the husband would be attacked in the capital, nor a real chance that he would otherwise be persecuted for a Convention reason.
wife's fear of persecution
The wife's concern was said to be that she faces persecution in Cambodia because she is married to a Westerner. The Tribunal noted that she had twice visited Cambodia without being harassed, and that the only evidence she provided to support her claim was that a Cambodian friend and her Belgian husband had been killed. The material did not disclose any details about this event, and the Tribunal did not consider that such an isolated, unexplained murder showed that the wife faced persecution in Cambodia for a Convention reason.
Tribunal's conclusions
The Tribunal found that the husband did not face a real chance of persecution in Bulgaria, his country of nationality; the wife did not face a real chance of persecution in Cambodia, her country of nationality; and "for the sake of completeness" neither faced a real chance of persecution in the other's country of nationality.
Country of nationality
Under Article 1A(2) of the Convention a "refugee" is a person who, owing to a well-founded fear of being persecuted for a Convention reason, is outside the country of his nationality and because of such fear is unwilling to avail himself of the protection of that country. The wife's country of nationality is Cambodia. She is outside that country. She says she has a fear of persecution in Bulgaria. But that is not the country of her
nationality. The husband's country of nationality is Bulgaria. He is outside that country. He says he has a fear of persecution in Cambodia. But that is not the country of his nationality. In my view the Tribunal correctly concluded that what it had to consider was whether the husband faced a real chance of persecution in Bulgaria, and whether the wife faced a real chance of persecution in Cambodia. Whatever may have been argued before the Tribunal, the correctness of these propositions was not challenged before me. Rather it was said that the husband's fear of his wife's persecution in Bulgaria was relevant to the assessment of his claim to be a refugee from Bulgaria, and the wife's fear of her husband's persecution in Cambodia was relevant to the assessment of her claim to be a refugee from Cambodia.
Family unity
The Tribunal was in my view correct in holding that unless the husband is granted a protection visa, the fact that the wife is a member of his family unit is irrelevant, and unless the wife is granted a protection visa, the fact that the husband is a member of her family unit is irrelevant. See Migration Regulations, regs 866.211(b) and 866.222. Again, I did not understand this to be contested.
Grounds of review
It was submitted that the Tribunal's decision involved an incorrect interpretation of the law or an incorrect application of the law to the facts found. See s476(1)(e) of the Migration Act 1958.
The husband
(a)his political actions and opinions
It was contended that since the Tribunal accepted that the husband had been beaten during demonstrations, it could only have rejected his claim by requiring him to establish more than a well-founded fear of persecution. In my view there is no substance in this contention. The husband was last beaten during demonstrations in 1992. As the Tribunal said, he remained in Bulgaria for more than two years after that, and completed his university course and undertook other studies. He did not claim harassment during that time. The Tribunal concluded that the husband was of no interest to the authorities when he left the country, and that there had been no change in his own circumstances or those of Bulgaria that would lead to a different conclusion at the date of its determination. It was open to the Tribunal to conclude as it did on the material before it. The submission that because the Tribunal accepted that pre 1992 beatings had occurred, the conclusion it reached must have resulted from an error of law, ignores the post 1992 evidence, and is simply an invitation to review the matter on the merits. Cf Minister for Immigration and Ethnic Affairs v Wu (1996) 185 CLR 259 at 291-292.
(b)as a member of social group
Here it was claimed that the husband had a well-founded fear of his wife's persecution because on his return to Bulgaria he would have to do military service and would thus be unable to protect his wife from racial abuse. The Tribunal rejected this claim on the ground that it was not satisfied that there was a real chance that the wife would be persecuted on the couple's return to Bulgaria. The Tribunal said:
The Applicant's spouse stated that all of the Vietnamese workers had been returned to Vietnam by 1992, although there was still anti-Vietnamese conduct and this was directed
indiscriminantly at anyone of Asian appearance. However, apart from insults and a feeling that she was once followed, she was not the victim of any of that discrimination .... The experiences of the Applicant's wife have not been of sufficient seriousness to amount to persecution.
It was submitted that the phrase "have not been of sufficient seriousness to amount to persecution" showed that the Tribunal had erred in law by departing from the Convention test - whether there is a real chance of persecution - and asking instead whether the wife had in fact been persecuted. That the Tribunal did not fall into error is shown by the ensuing passage from its reasons:
The attacks on the Vietnamese were economically motivated when, according to the Applicant and his wife, Bulgarians perceived the Vietnamese to be profiting in times of economic hardship. In the wake of those attacks the [Applicant's wife] was not harmed, other than to be insulted, and she returned to Bulgaria after a stay in Cambodia almost three years after the anti-Vietnamese attacks. The cause of those attacks has now been removed with the return to Vietnam of the guest workers and, while the Applicant's wife may be insulted from time to time, her past experiences and the isolated nature of the attacks on foreigners leads to the conclusion that she does not face a real chance of persecution on account of her race if she were to return to Bulgaria.
The two passages together make clear that the Tribunal did not fail to apply the "real chance" test in favour of an actual persecution test. In the first passage it was examining the evidence relied upon by the wife to show her fear of persecution on return to Bulgaria. In assessing that conduct, the Tribunal expressed the view that the evidence did not establish that she had been persecuted. It had not at that stage in its reasons reached the Convention inquiry. When it did, it applied the real chance test. The submission fastens upon the reference to (actual) persecution, robs it of its context, and seeks thereby to
demonstrate error. This is not the approach the Court adopts. It reads the Tribunal's reasons as a whole, not subjecting parts of them to careful scrutiny astute to the discovery of mistakes. See Wu at 291-292.
In my view the husband's "social group" contention is untenable for a more basic reason than that I have given for rejecting his attack on the Tribunal's decision. When the Convention speaks of a person having a well-founded fear of persecution, it refers to a person who has a fear of his own persecution. The husband has no such fear. Rather he fears that his wife will be persecuted, and he will be unable to protect her because he will be away on military service.
Grounds of review - wife
(a)wife's circumstances
All that was submitted here was that the Tribunal erred in failing to consider the husband's circumstances in Cambodia and thereby her circumstances. See (b) below.
(b)husband's circumstances
In determining that the husband feared only random criminal violence and not "persecution" for a Convention reason, the Tribunal relied on Ram. That case involved a Sikh who had returned to the Punjab after working abroad and amassing considerable wealth. He was seen to be wealthy and was subject to extortion by violence or threats. Burchett J, with whom the other members of the Court agreed, said at 568:
If harmful acts are done purely on an individual basis, because of what the individual has done or may do or possess, the application of the Convention is not attracted, so far as it depends upon "membership of a particular social group". The link between the key word "persecuted"
and the phrase descriptive of the position of the refugee, "membership of a particular social group", is provided by the words "for reasons of" - the membership of the social group must provide the reason.
His Honour then referred to those executed in the French Revolution and those eliminated by Pol Pot in Cambodia, as examples of persecution because of membership of a particular social group, and continued:
In neither case was the motivation what a particular individual possessed or had done. ... The fact is that it was the whole class which, in each instance, was attacked. Individuals were not persecuted for what they had done as individuals, nor for what they possessed as individuals.
At 569 his Honour applied this distinction to the facts before the Court:
... quite apart from the difficulty of seeing wealthy Punjabis living in circumstances which make them vulnerable to extortion as a sufficient group, it is the greater difficulty of saying that the attacks feared by the appellant would be for reasons of his membership of that group which, it seems to me, he cannot overcome. Plainly, extortionists are not implementing a policy; they are simply extracting money from a suitable victim. Their forays are disinterestedly individual.
The Tribunal then said that in the unlikely event of the husband being robbed, the robbery would be motivated by his perceived wealth. That is, he would be a "suitable victim" for a robber. The husband submitted that the Tribunal failed to consider what Burchett J said at 569 of Ram:
I have referred to the way in which a group is seen by others. In this area, perception is important. A social group may be identified, in a particular case, by the perceptions of its
persecutors rather than by the reality. The words "persecuted for reasons of" look to their motives and attitudes, and a victim may be persecuted for reasons of race or social group, to which they think he belongs, even if in truth they are mistaken.
It was submitted that the Tribunal should have accepted that the husband belonged to a social group consisting of Westerners who were perceived to be wealthy, and that there was a real chance that he would suffer criminal violence for that reason. The answer to this contention is that the Tribunal had already found that the likelihood of the husband or wife being the victim of violence in the wife's home city was remote. It was only after making this finding that the Tribunal went on to consider whether, even if they were subjected to robbery, it would be for a Convention reason. Hence the words which introduced the conclusion now under attack - "In the remote possibility of a robbery ...".
Accordingly the claim that the wife is entitled to be accorded refugee status because the husband fears violence in Cambodia fails.
Even if the Tribunal had considered that there was a real chance that the husband would be the victim of violence in Cambodia, the wife's claim would have failed. She has no fear of persecution in Cambodia. Her fear is that her husband will be the victim of violence there. But as I have said, the Convention requires the person who claims to be a refugee to fear persecution.
Conclusion
The attacks on the Tribunal's conclusion on the basis that its decision involved errors of law fails and the application is dismissed with costs.
I certify that this and the preceding sixteen pages are a true copy of the reasons for judgment of the Honourable Justice Sundberg
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Associate
23 May 1997
Counsel for the Applicants: T Hurley
Solicitors for the Applicants: Barlow and Company
Counsel for the Respondent: C Gunst
Solicitor for the Respondent: Australian Government Solicitor
Date of Hearing: 15 May 1997
Place of Hearing: Melbourne
Date of Judgment: 23 May 1997
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