NAHO v Minister for Immigration
[2003] FMCA 457
•10 October 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NAHO v MINISTER FOR IMMIGRATION | [2003] FMCA 457 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming ethnic persecution in Latvia – no reviewable error found. |
Migration Act 1958 (Cth), s.474
Abebe v Commonwealth (1999) 197 CLR 510
Applicant S20 v Minister for Immigration [2003] HCA 30
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Labara v Minister for Immigration [2002] FCAFC 145
Minister for Immigration v Yusuf (2001) 206 CLR 323
Sellamuthu v Minister for Immigration (1999) 90 FCR 287
| Applicant: | NAHO |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ703 of 2003 |
| Delivered on: | 10 October 2003 |
| Delivered at: | Sydney |
| Hearing date: | 10 October 2003 |
| Judgment of: | Driver FM |
REPRESENTATION
The applicant appeared in person
| Counsel for the Respondent: | Mr A J McInerney |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ703 of 2003
| NAHO |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 18 November 2002 and handed down on 12 December 2002. The RRT affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa. The general background circumstances are set out in paragraphs 1 through to 8 of written submissions prepared by Mr McInerney on behalf of the Minister. I adopt that statement of background facts, including the description of the RRT decision, in those paragraphs for the purposes of this judgment:
On 12 December 2002, the RRT handed down a decision which affirmed the earlier decision of a delegate of the respondent not to grant a protection visa to the applicant.
The applicant is a permanent non-citizen of Latvia, who arrived in Australia on 9 April 1998, and applied for a protection visa on 24 January 2001. Her application was rejected by a delegate of the Minister on 6 June 2001 . The applicant applied for a review of that decision by the RRT on 26 June 2001.
The applicant is a young woman of Russian ethnicity and Russian Orthodox faith, born and raised in Riga, the capital of Latvia .
In about March 2000, the applicant's mother was accused of attempting to export national and historical artefacts out of Latvia to Australia. She was prosecuted but won her case and launched civil proceedings against the Customs Department in Latvia. The applicant claimed that her mother feared persecution in Latvia following the accusations made against her, and that she feared persecution as a member of her mother's family .
The RRT concluded that the applicant's mother was not fearful of Latvian authorities .
In any event, the country information indicated that, in general, the ethnic Russian minority in Latvia was not persecuted .
In summary, the RRT was satisfied that:
b)the applicant was a permanent non-citizen of Latvia;
c)a family can form a social group for the purposes of the Convention;
d)the applicant's claims were not borne out by the documentary evidence she offered in support of them;
e)there was not a concerted press campaign to vilify the applicant's mother for reason of her ethnicity;
f)any anti-Russian sentiment directed at the applicant's mother was on an individual and random basis, was not state-sanctioned, and did not amount to persecution;
g)the applicant's mother was able to access the law like any other citizen, and the Latvian state was neither unwilling nor unable to protect her;
h)no claim was made, and the evidence did not suggest, that the applicant had suffered harm by reason of her ethnicity before her departure from Latvia.
The RRT was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason and was not, therefore, a refugee.
The applicant relies upon her application filed on 6 January 2003 and her supporting affidavit filed on the same day, as well as a document headed “Statement of Claims” filed on 1 October 2003. In her application the applicant asserts that the RRT did not give much weight to articles provided by the applicant and her brother which referred to the mother's experience.
The applicant asserts that this resulted in an incorrect interpretation of circumstances which subsequently led to the applicant's fear and her decision to apply for a protection visa. Secondly, the applicant asserts that the RRT should have regarded the applicant's case as an exceptional irregular matter and that such matters have little to do with country information. The applicant states that in the present case the country information was used to justify the negative decision of the RRT.
Thirdly, the applicant asserts that the RRT was in error in stating that the campaign against the applicant's mother was on an individual and random basis, that it was not state sanctioned and that is did not amount to persecution. The same grounds are set out in the applicant's affidavit. In her statement of claims, the applicant takes issue with the RRT's finding that press reports about the applicant's mother's difficulties with the Latvian Customs Service were largely supportive and sympathetic.
The applicant asserts that the RRT seemed to accept that her mother was harmed by the Latvian authorities and states that it does not really matter whether the press was supportive or sympathetic. What matters was the fact that the circumstances surrounding the prosecution of the applicant's mother was “wildly published” and that the authorities “fabricated” a criminal case against her mother and that her mother suffered illness as a result of it.
The applicant also takes issue with the RRT’s finding that the applicant mother's fear was not well founded. The applicant refers to a decision of the Full Federal Court in Labara v Minister for Immigration [2002] FCAFC 145. The applicant states that in that case the RRT found that the applicant had suffered harm due to individual and random incidents. The applicant states that the RRT in Labara was found to have erred on that basis because a single or random act of persecution can satisfy the test for the purposes of the Refugees Convention. The applicant also takes issue with the RRT's finding that the persecution she says her mother suffered was not state sanctioned. She regards this finding as dubious.
Finally, the applicant asserts that the RRT entirely failed to consider the question of whether, in a practical sense, the Latvian state was able or willing to provide her mother and family with effective protection. The applicant asserts that her mother and father were subjected to harm for a Convention related reason.
The applicant restated these propositions on oral submissions to me this morning. I took issue with the applicant's first proposition that the RRT had in substance found that her mother had suffered persecution in Latvia. The RRT drew its conclusions on this issue in the court book at page 137. The presiding member stated:
The Tribunal is satisfied on the evidence before it that there was not a concerted press campaign to vilify the applicant's mother for reasons of her ethnicity. The Tribunal is satisfied that any anti-Russian sentiment directed at the applicant's mother was on an individual and random basis: it was not State sanctioned, nor did it amount to persecution. The Tribunal was also satisfied that the applicant's mother was able to access the law like any other citizen and that the State is neither unwilling nor unable to protect her.
In essence, the RRT found that while the applicant's mother had had difficulties with the Latvian customs service, those difficulties did not constitute persecution by the Latvian state, and that while individual Latvians may have done acts which might constitute acts of discrimination, there was no state sponsorship or sanction to such individual acts. The presiding member had regard to country information which established to the presiding member's satisfaction that the Latvian state does not discriminate against Russians or other ethnic minorities and that effective state protection is available in Latvia to ethnic minorities.
Mr McInerney, in his written submissions, deals with the three general grounds raised by the applicant in paragraphs 9 through to 26 of those written submissions. I agree with Mr McInerney's submissions and adopt them for the purposes of this judgment:
The application makes the following complaints in respect to the RRT's decision:
a)Ground 1 - The RRT did not give much weight to the articles provided by the applicant to the RRT;
b)Ground 2 - The applicant's case is "an exceptional, irregular matter" such that general country information is irrelevant and should not have been taken into account by the RRT;
c)Ground 3 - The RRT erred in finding that the treatment suffered by the applicant's mother occurred on an individual and random basis.
Ground 1
This ground is, in substance, an attempt to re-argue the merits of the case before the RRT.
The applicant's claim turns on an argument that the RRT made a mistake of fact in assessing the weight to be given to the four articles relied upon by the applicant.
The RRT was satisfied that the articles relied upon by the applicant did not support her claim.
Even if there had been a mistake of fact (which is denied) no error of law is disclosed in simply making a wrong finding of fact: Abebe v Commonwealth (1999) 197 CLR 510 at 560; cf Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151.
So long as there was some material before the RRT which was capable of supporting the conclusions reached then no error of law is demonstrated in the fact finding of the RRT. The weighing of evidence and finding of facts is quintessentially a matter for the RRT.
The conclusion that the RRT made an error in its fact finding would not result in the RRT failing to exercise its jurisdiction so as to form a basis for relief in this Court.
Even if the reasoning process leading to a factual conclusion could be described as illogical or unreasonable, that would not in itself amount to jurisdictional error. A relevant error would only be found if the faulty reasoning was itself evidence of (for example) a failure to act judicially or to appreciate what the relevant issues were: Applicant S20 v Minister for Immigration [2003] HCA 30[1].
[1] at [8-9] per Gleeson CJ, at [36] per McHugh and Gummow JJ, at [116] per Kirby J.
No error is disclosed by the RRT in its assessment of the articles relied upon by the applicant, and its determination as to the weight to be afforded to that evidence.
Ground 2
The RRT's use of the independent country information was unobjectionable, and unexceptional.
The RRT relied on the independent country information by way of background, and to assess the claim made by the applicant that Latvian authorities had created an atmosphere of hatred and hostility towards "aliens" within Latvia, forcing them to leave that country.
No error is disclosed in the findings by the RRT that the rights of resident non-citizens were, in a number of respects, equivalent to those of citizens, or that, in general, the ethnic Russian minority in Latvia was not persecuted.
The RRT applied itself to all the substantial matters which might bear on whether the applicant met the Convention requirements of a refugee and considered the real question which it was its duty to consider[2].
Ground 3
The applicant's claim failed on the facts.
In order to succeed, it was necessary for the applicant to persuade the RRT that the incidents of Latvians spitting, assaulting, and otherwise abusing the applicant's mother, constituted persecution under the Convention and was state sanctioned.
The RRT concluded that any anti-Russian sentiment directed at the applicant's mother was on an individual and random basis, was not state-sanctioned, and did not amount to persecution.
No error is disclosed in the RRT's finding of fact in respect to that issue.
The finding made by the RRT was open on the materials before it and within its jurisdiction.
[2] Compare Sellamuthu v Minister for Immigration (1999) 90 FCR 287 at 292-3; see also Minister for Immigration v Yusuf (2001) 206 CLR 323, particularly at [82]-[85].
In my view, no legal error, let alone any jurisdictional error is apparent on the record of the RRT decision. There is no evidence of any procedural unfairness in the decision of the RRT and the proceedings before it. The three Hickman provisos to the privative clause in s.474 of the Migration Act are satisfied. In those circumstances, the decision of the RRT is a privative clause decision and the application must be dismissed. I will therefore dismiss the application.
On the question of costs, the applicant having been wholly unsuccessful and the respondent wholly successful, Mr McInerney has sought an order for costs. I am satisfied that consistently with the general principle that costs follow the event a costs order should be made. Mr McInerney has invited me to fix costs in the sum of $4,000. The applicant did not wish to make any submissions on the question of costs. I understand that the Minister has incurred costs in the vicinity of $4,000 on a solicitor and client basis. However, on a party and party basis a lesser sum should be fixed. I will order that the applicant pay the Minister's costs of and incidental to the application, which I fix in the sum of $3,000.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 16 October 2003
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