NAMT v Minister for Immigration
[2003] FMCA 529
•21 November 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NAMT v MINISTER FOR IMMIGRATION | [2003] FMCA 529 |
| MIGRATION – Review of Review Tribunal decision – refusal of a protection visa – applicant claiming persecution as a homosexual in Latvia – applicant claiming interpretation errors – no substance to the claim – no other reviewable error apparent – application dismissed. |
Migration Act 1958 (Cth), s.91R(2)
Efimcova v Minister for Immigration [1998] FCA 1138
Minister for Immigration v Khawar (2002) 187 ALR 574
Minister for Immigration v Prathapan (1998) 86 FCR 95
Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259
Perera v Minister for Immigration (1999) 92 FCR 6
Thiyagarajah v Minister for Immigration (1997) 73 FCR 176
| Applicant: | NAMT |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ627 of 2003 |
| Delivered on: | 21 November 2003 |
| Delivered at: | Sydney |
| Hearing date: | 21 November 2003 |
| Judgment of: | Driver FM |
REPRESENTATION
The applicant appeared in person
| Counsel for the Respondent: | Ms T Jowett |
| 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 $3,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ627 of 2003
| NAMT |
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 11 February 2003 and handed down on 4 March 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The applicant is from Latvia and applied for a protection visa on the basis of asserted persecution in Latvia as a member of a particular social group, namely, homosexuals. The background to the proceedings before the RRT leading to the application in this Court is set out in paragraphs 2 and 3 of the written submissions prepared by Ms Jowett, on behalf of the Minister. I accept those paragraphs as an accurate statement of those background facts:
The applicant arrived in Australia from Latvia on 22 November 2000, departed on 3 December 2000 and returned on 12 March 2001, and lodged an application for a protection (class XA) visa on 26 April 2001 under the Act. The applicant claimed to fear persecution in Latvia as a result of his homosexuality.
The delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“MIMIA”) refused to grant a protection visa to the applicant on 16 August 2001. The RRT affirmed the decision of the delegate, not to grant a protection visa to the applicant.
The RRT decided that the applicant’s fear of serious harm by reason of his homosexuality is not well-founded because there is in Latvia adequate protection available from the State for criminal harassment and harm by private individuals (court book, pages 43, 51, 52). The RRT made no findings on the veracity, or otherwise, of the applicant’s claims of persecution because it was satisfied that, even if the claims were true, there was evidence of effective State protection (court book, pages 44, 45-50). The RRT made the following findings:
a)the Latvian government did not discriminate against homosexuals nor did it condone discrimination against homosexuals. Homosexuality has been decriminalised since 1993 (court book, page 83);
b)since independence from the USSR, Latvia had seen the emergence of homosexual advocacy groups, social groups, cultural groups, venues and events. Activists report that official treatment of homosexuals is increasingly tolerant. A significant majority of the population, 53 per cent, reportedly support legal recognition of same-sex partnerships (court book, page 83);
c)there was no information before the RRT to indicate that the Latvian government condones harassment or physical mistreatment of homosexuals by private individuals or criminals hired by political figures (court book, page 83);
d)nor was there any information available regarding the Latvian government condoning or being unwilling to prevent failures by the Police to investigate crimes committed against homosexuals (court book, page 83). It is likely that the Police failed to make arrests in relation to the applicant’s complaints because of lack of evidence rather than discrimination (court book, page 83); and
e)there is one gay advocacy group and one general human rights advocacy group that are available to homosexuals to pursue complaints against agents of the State (court book, page 84).
Further, the applicant claimed he had been discharged from the military in 1974 (court book, page 74) because of suspicions of his homosexuality and his contract of employment at a radio station was not renewed in December 1992 (court book, page 74) because he was homosexual. The RRT determined the applicant had been continuously employed in a managerial position from 1993 to his departure from Latvia in 2000 (court book, page 85). Because he enjoyed employment at a managerial level for many years the RRT was not satisfied that, even if his claims of losing the positions were true, the harm was not serious enough to amount to persecution within the meaning of s.91R(2) of the Act (court book, page 85).
In his application filed on 2 April 2003 and supporting affidavit the applicant raises the three issues set out in paragraph 3 of Ms Jowett's written submissions:
The applicant seeks review of the RRT’s decision as summarised below:
a)the applicant’s evidence before the RRT was misinterpreted because he was provided with a Latvian interpreter when he had requested a Russian interpreter;
b)the RRT had not accepted that the crimes of violence and theft allegedly committed against the applicant were done with the collusion or condoning of the Police, as agents of the State, when they had not conducted or concluded investigations into the crimes. The applicant states that the Police are an integral part of the Latvian government. The lack of support for homosexuals from the Police indicates a lack of support from the government; and
c)the RRT did not correctly interpret the country information in relation to homosexual in Latvia.
Frankly, the first claim that there was an interpretation problem arising out of the provision of a Latvian interpreter at the RRT hearing lacks credibility. I accept wholly the written submissions on this point made by Ms Jowett in paragraph 4 of her written submissions:
In his application to the Court dated 2 April 2003 the applicant contends that: “…despite my request for a Russian interpreter I was provided with a Latvian interpreter and some things were misinterpreted.”
The applicant’s initial application for a protection visa dated 26 April 2001 provided information as follows:
“8. Which languages to you speak, read or write?
Language/Dialect in order of preference
Speak, read, write
Latvian
All boxes ticked
Russian
All boxes ticked.”[1]
[1] Court book, page 1
When completing the form for the RRT application for review dated 6 September 20001 (“form”) the applicant indicated that he required an interpreter and the language he required interpreted was “Latvian”, not Russian (court book, pages 54 and 50).
On the form, the applicant claimed that the delegate of the Minister did not understand his evidence:
“I believe that the case manager at DIMA has failed to take note of all the information presented to him in the original application and during the course of the interview. I wrongly elected that a Russian translator be present at my interview rather than a Latvian translator. My first language is Latvian and I had difficulties communicating with the translator. Throughout my employment as a journalist all my work was conducted in Latvian not Russian. As a result of this error I feel that I failed to relate crucial information to the case manager through the translator”. (court book, page 51).
On the Response to the Hearing Invitation dated 29 November 2002 the applicant requested a Latvian interpreter (court book, page 63).
On 3 December 2002 the applicant was given the opportunity of having a Russian interpreter for the RRT hearing scheduled for 4 December 2002. The applicant rejected the offer. The RRT CMS Case Notes states:
3.12.02 Rang AR to ask whether the applicant would be OK with a Russian interpreter for the hearing, the AR informed that a Latvian interpreter is necessary as previous communication problems arose with a Russian interpreter, I formed the AR that the Tribunal will arrange for a Latvian interpreter to be booked. Sbradford.
Hearing was cancelled on 03/12/2002 by PRSKSF (Interpreter unavailable).” (court book, page 88).
On 3 December 2002 a facsimile was sent by Sevgi Bradford of the RRT to Michael Ryvchin Rykono, the applicant’s agent, informing him that the RRT hearing was rescheduled from 4 December to 6 December 2002 because a Latvian interpreter was not available (court book, page 64).
The applicant was assisted by a Latvian interpreter on 6 December 2002 (court book, page 73). There is no evidence that he requested a Russian interpreter at the RRT hearing. Nor is there evidence that any problems with interpretation related to matters that were significant to the interpretation of the applicant’s evidence or the RRT’s decision: Perera v Minister for Immigration (1999) 92 FCR 6 at 23-24.
At the RRT hearing the applicant informed the RRT that he had been misconstrued, by the interpreter at the interview with the delegate, and that the business friend to whom he referred in his submissions was not homosexual as the delegate stated in his summations (court book, page 46). The RRT noted this anomaly but it made little difference to the decision as the decision was based on whether the applicant was afforded protection or not in Latvia.
I am satisfied that the applicant is fluent in both Russian and Latvian.
I have formed a view that asserted misinterpretation difficulties based upon whether an interpreter was Latvian or Russian are mischievous.
In the hearing before me this morning, the applicant asserted that the real problem was that documents were presented to him in English and that the “lawyer” he retained to act for him for the RRT spoke only English. I am not sure who that lawyer was. I assume that he was not referring to Mr Ryvchin, his migration agent in the proceedings before the RRT because I have had Mr Ryvchin appear in this Court as a witness and I understand that he speaks Latvian and Russian. Be that as it may, both courts and tribunals in Australia are entitled to and do conduct their business in the official language of Australia, which is English. There is no legal reason for proceedings to be conducted in another language simply because it is the first language of a litigant. The obligation on a court or a tribunal is to ensure procedural fairness by providing interpretation into the language of the litigant where that is reasonably required. I am satisfied from the record of the proceedings before the RRT that the RRT did everything that could be expected of it in order to provide interpretation assistance to this applicant.
The other part of the applicant's claim in this Court relates to the RRT finding that effective State protection is available to homosexuals in Latvia. In making that finding, the RRT relied upon country information. The applicant asserts that the decision of the RRT is wrong because the reality of his experience in Latvia is different from what appears in the available country information. The application asserted from the bar table that the description by the presiding member of the claims he presented at the hearing before the RRT was inaccurate, in particular in relation to his relationship with his friend who was a member of Parliament, and whether or not the sexual orientation of his friend was an important consideration.
The applicant told me first that his friend was not pressured to resign from politics and that his sexual orientation was not a relevant consideration. However, later he put to me that the problems he says he experienced in Latvia stemmed from his relationship with his friend and that homosexuality was a factor. I found this somewhat confusing and inconsistent. I did not consider it necessary or appropriate to take sworn evidence from the applicant, first, because I doubted that it would be productive; and secondly, because I am not reviewing the merits of the RRT decision.
To the extent that the applicant is concerned about the accuracy of the description of his claims in the RRT decision, he could have sought to prove a misdescription by the preparation of transcript from the hearing. The applicant was provided with a copy of the tapes of the RRT hearing and he told me from the bar table that he was satisfied that the audio record of the hearing was accurate. He has not sought to present to me evidence that might establish that the description of the applicant's claims by the presiding member was inaccurate. I draw an inference that a transcript prepared from the tapes would not assist him.
The decision of the RRT turned on the question of whether effective State protection is available in Latvia for homosexuals. Mr Jowett deals with that issue in paragraphs 5 and 6 of her written submissions. I agree with her written submissions and adopt them for the purposes of this judgment:
The RRT found that the Latvian Police do not condone violence toward homosexuals and that they offered protection to the applicant. These findings of fact cannot be overturned by judicial review.
The RRT accepted that State protection was, in the circumstances, not lacking or denied, nor that such protection was so ineffectual that the applicant’s fear of a recurrence was well-founded. In coming to this conclusion it relied on Federal Court decisions in Thiyagarajah v Minister for Immigration (1997) 73 FCR 176 at 179; Minister for Immigration v Prathapan (1998) 86 FCR 95 (“Prathapan”) and Efimcova v Minister for Immigration [1998] FCA 1138. In particular the comments of Lindgren J in Prathapan are pertinent. His Honour stated:
It is not countervailing evidence to show that the authorities cannot guarantee immunity from persecution and reprisals. The material on which Mr Prathapan relied did not even begin to suggest that the level of ineffectuality of state protection that would allow or give rise to a real chance that he would be persecuted… regardless of his resorting to the French authorities.
The RRT found that the situation in Latvia is such that effective State protection is available to homosexuals to secure protection against violence. Hence the applicant is not a refugee within the meaning of the Convention: Minister for Immigration v Khawar (2002) 187 ALR 574.
It is submitted that the applicant’s complaint about the RRT’s decision relates to the weight that the RRT attached to independent country information when it rejected the applicant’s interpretation of the Police’s motivation for not making arrests in relation to the crimes committed against him and the level of protection afforded to homosexuals by the Latvian government. Review on these grounds would involve an impermissible trespass into the merits of the applicant’s claim. It is submitted that the Court has no jurisdiction to conduct merits review: Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259.
I conclude that the decision by the RRT on the availability of effective State protection for homosexuals in Latvia was reasonably open to the RRT on the material before it.
The proceedings before the RRT were fair. There is no jurisdictional error in the decision of the RRT. In the circumstances, the decision of the RRT is a privative clause decision.
I must dismiss the application.
On the question of costs, the applicant having been wholly unsuccessful and the Minister wholly successful, Ms Jowett seeks an order for costs fixed in the sum of $4,000 on a party/party basis. The applicant submits that he is impecunious and could not pay the costs. As I told the applicant, impecuniosity is not a reason for the Court to refrain from making a costs order. It may have a bearing upon the action taken or not taken on behalf of the Minister to seek to recover costs. As to the amount, costs orders in migration proceedings have been commonly made by me in the range of $2,500 to $3,500 in straightforward matters. In recent months costs orders have been made by me on occasion for higher amounts. In decisions that I have made in recent months in what might be termed matters of average complexity, I have made costs awards in the range $3,000 to $4,000. There is nothing in this matter that would take it out of the average range. I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $3,500.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 23 December 2003
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