SZBDO v Minister for Immigration - [2006] FMCA 29

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBDO & ORS v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 29

MIGRATION – Review of decision of the Refugee Review Tribunal – information obtained after the Tribunal hearing – independent country information – common law procedural fairness – section 424A of the Migration Act – no jurisdictional error – application dismissed.

Migration Act 1958, ss.422B, 424A

SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162
Re Minister for Immigration & Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502
Meadows v Minister for Immigration & Multicultural and Indigenous Affairs (1998) 54 ALD 654
WAEJv Minister for Immigration & Multicultural & Indigenous Affairs (2003) 76 ALD 597
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicants:

SZBDO & ORS

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1568 of 2003

Judgment of:

Mowbray FM

Hearing date:

31 January 2005

Heard at:

Sydney

Date of Last Submission:

4 May 2005

Delivered at:

Canberra

Delivered on:

18 January 2006

REPRESENTATION

Advocate for the Applicants:

First applicant in person assisted by
A Volonski

Counsel for the First Respondent:

Mr A McInerney

Solicitors for the First Respondent:

Sparke Helmore

ORDERS

The Refugee Review Tribunal be joined as a party to these proceedings.
The application be dismissed.
The applicant pay the first respondent’s costs and disbursements fixed in the sum of $6,250.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1568 of 2003

SZBDO & ORS

Applicants

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for review of a decision of the Refugee Review Tribunal made on 25 June 2003 and handed down on 23 July 2003 affirming a decision of a delegate of the first respondent to refuse to grant to the applicants protection visas.
Consistent with SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162, I join the Tribunal as a party to these proceedings. Any reference to the respondent in these reasons is to the Minister, the first respondent.
The applicants are husband and wife and their two daughters. As no specific claims were made by the second, third and fourth applicants I will refer in these reasons to the first applicant as the applicant.
The applicants arrived in Australia on 22 September 2001 and on

23 October 2001 they lodged applications for a protection visa. On 26 April 2002 a delegate of the respondent refused to grant protection visas and on 24 May 2002 the applicants sought review of that decision with the Tribunal.

Claims before the Department and the Tribunal

The applicant claimed to be a former KGB agent in Latvia. He said that when Latvia achieved independence a list of KGB agents in Latvia was published in the Latvian newspapers, including his name. He claimed that he received threatening telephone calls and letters and was assaulted by ethnic Latvians. The police did not pay much attention to his complaints.
He claimed that his house was burned down in 1995 and when he found a new home he still received threatening telephone calls and letters. As the result of attacks directed at him because of his former occupation he had been hospitalised 14 times. He asserted that as many as 20 former KGB agents had died in mysterious circumstances since 1991. He claimed that he would be beaten, threatened and possibly killed if he returned to Latvia.
He also made claims based on his inability to gain Latvian citizenship and being a Russian speaker.
The applicant made a number of corrections to the information contained in his written visa application at the Tribunal hearing.

Grounds for judicial review

The applicant relied on his amended application filed on 6 January 2005. He contended that the Tribunal denied him natural justice:
a)The Tribunal received an email from the Executive Secretary of the Latvian Human Rights Committee dated 5 June 2003 after the hearing but before the decision was made. It relied on that information in its decision but failed to provide the information to the applicant for comment.
b)Given that the Tribunal decision was based on a finding that the applicant’s accounts were not true due to a lack of independent evidence the applicant should have been able to comment on this new evidence. This was in breach of s.424A(1) of the Migration Act 1958 and constituted jurisdictional error.

Tribunal consideration

A Tribunal hearing was held on 27 May 2003. The applicant attended and gave oral evidence. His migration advisor filed written submissions dated 30 May 2003 after the hearing.
The Tribunal dealt with three claims of persecution:
·as a former KGB officer in Latvia subject to the possibility of gaoling and physical attack
·as a former KGB officer in Latvia refused citizenship
·as a Russian speaker in Latvia.
The Tribunal found that the applicant was stateless and that he was habitually resident in Latvia.
Examining first the applicant’s claims of persecution as a former KGB officer, it found that the applicant did not have a genuine fear of persecution for a Convention reason. The Tribunal stated at page 285 of the Court Book:
The applicant’s failure at any time to seek refuge in any of the signatory countries through which he has travelled in the entire ten years during which he claims to have experienced persecution including physical assault, the fact that the applicant was able to exit from and re-enter Latvia on many occasions using documentation in his own name, and the fact that he was able to obtain documentation in his own name and leave Latvia without any difficulty all suggest to me that the applicant does not have a genuine fear of persecution for a Convention reason.
The Tribunal found that there was insufficient independent corroboration of the applicant’s claims. It was therefore inclined to not accept the claims as being true. The Tribunal, however noted, that it did not propose to make definite findings of credibility on the applicant’s claims but relied on state protection as if the persecution claimed had occurred.
The Tribunal relying on independent information found that former Soviet military personnel including former KGB officers were not subject to official discrimination or mistreatment on those or related grounds. The Tribunal was satisfied that the Latvian Government was able and willing to provide effective state protection. The independent information before it, from the two main Latvian human rights organisations, did not support the applicant’s claims that there had been multiple suspicious deaths or disappearances of former KGB officers because they were former KGB officers. It noted that the only information available related to former KGB officers involved in organised crime.
The Tribunal discovered no support for the applicant’s claims that the Latvian authorities were involved in the persecution of former KGB officers by failing to protect them against private citizens or nationalist groups. Moreover, claims of government involvement in the leaking of details of former KGB officers, including himself, and an active policy on the part of the Latvian Government to force Russian non-citizens and KGB officers out of Latvia were not substantiated in any of the material. The Tribunal noted that it was unable to locate any reports of any paramilitary or ultranationalist or fascists activities directed specifically at former KGB officers in Latvia.
The applicant claimed that he reported three incidents of physical assault and fire damage to his flat to police and that nothing eventuated from these reports. The Tribunal rejected the applicant’s view that the failure of the police to solve these crimes was evidence of the Latvian Government’s involvement in persecution of former KGB officers. Further, the applicant failed to avail himself of the further avenues of protection open to him in Latvia in circumstances where such protection would have been forthcoming. It was not unreasonable to expect the applicant to have followed up with the appropriate Latvian, European or non-government authorities the failure of the police to solve his complaints of criminal activities.
Accordingly, the Tribunal was satisfied that the applicant would have available to him effective state protection in Latvia for harm which may be directed at him by reason of his membership of the KGB.
The Tribunal accepted that the applicant was a former KGB officer in the Soviet Union until 1991. It also accepted that the independent information that former KGB officers were not entitled to apply for Latvian citizenship. The Tribunal, however, found that this was not harm serious enough to amount to persecution within the meaning of the Refugees Convention and the Act.
The Tribunal accepted that non-citizen residents have broadly equal rights and entitlements under Latvian law, save for voting and election to public office and to public or state employment. It found that the applicant had been able to work since 1991 in self-employment and that this form of employment had enabled him to support his family. The applicant was able to finance a considerable amount of foreign travel. Although non-citizen residents such as the applicant were precluded from certain positions in public or state employment it did not prevent him from supporting himself and his family by gainful employment in the private sector.
Accordingly, the Tribunal found at page 287 of the Court Book that the refusal of Latvian citizenship did not amount to persecution within the meaning of the Convention and the Act. It did not amount to a serious punishment or penalty or a significant detriment or disadvantage, as required by s.91R of the Act.
The Tribunal noted that although the applicant claimed discrimination as a Russian speaker, he pointed to no experience of harm that amounted to persecution by reason of being a Russian speaker in Latvia. The Tribunal accepted independent information that discrimination on the basis of language was prohibited in Latvian law and the Latvian Constitution. It accepted independent information that the applicant would have available to him avenues of recourse which he failed to pursue which included the police and the Latvian Courts and various human rights organisations.
Nevertheless the Tribunal agreed that there still some problems in Latvia in its approach to a multicultural population, in particular the status of non-citizens and of Russian speakers. The Tribunal, however was satisfied that these lacunae in the Latvian law were being addressed as part of Latvia’s steps towards membership of the European Union. In any event there was no suggestion that the Government of Latvia condones or is unable or unwilling to prevent serious harm to Latvian residents by private individuals or nationalist organisations because of their nationality or language. The Tribunal found at page 288 of the Court Book there cannot be said to have been a failure of state protection.
Accordingly, the Tribunal was not satisfied that the applicant was a person to whom Australia had protection obligations under the Convention.

Consideration

Two issues arise for consideration:
·whether the Tribunal was obliged to draw the information in the Latvian Human Rights Committee’s email to the applicant’s attention for comment in accordance with s.424A, and
·whether there was a breach of procedural fairness at common law in relation to the independent country information.
Only the former was raised by the applicant in his amended application.

Section 424A and the email

The applicant contended that the Tribunal failed to comply with its obligations under s.424A(1) by not giving the applicant an opportunity to comment on the information in an email received on 5 June 2003 from the Latvian Human Rights Committee.
The Tribunal had requested specific information concerning some of the applicant’s claims by an email dated 28 April 2003. A response dated 5 June 2003 was received by the Tribunal on 6 June 2003 after the Tribunal hearing and before the decision was handed down. At [40] the Tribunal said:
Also received after the hearing was an email dated 5 June 2003 from the executive of the Latvian Human Rights Committee in response to general questions based on the applicant’s claims which were put to that Committee by a researcher for the Tribunal at my direction. That response is general in nature, dealing with a class of persons (former KGB officers in Latvia) of which the applicant is a member, and is not specifically about the applicant. Consequently, in accordance with s.424A(3)(a) of the Act, I have taken this information into account without putting the information to the applicant for response in accordance with the disclosure provisions in s.424A. The email is contained on the Tribunal file and for the sake of brevity I do not reproduce its contents here. The general import of that information, as taken from other sources which I set put below, was put to the applicant during the hearing for his comment.
Section 424A relevantly provides:
(1) Subject to subsection (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c) invite the applicant to comment on it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies–by one of the methods specified in section 441A; or
…
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
…
In his written submissions, which he entitled his “Speech”, the applicant said:
Given the fact that my fear has always been connected to issues related to small group of former KGB officers”(i.e. class of people) and that issues had everything to do with me personally, I conclude that the information about such issues were to be given to me pursuant to s.424A(1).
I accept the respondent’s submission that there was no breach of s.424A(1) as the email information fell within the exclusion in s.424A(3)(a).
The email is set out at pages 258 – 259 of the Court Book. The requesting email which must be distinguished from the response is at pages 259 – 261. Only in the requesting email is there any thing specific to the applicant. This is a brief description of the applicant’s claims.
The information in the reply clearly is not specifically about the applicant or another person, but about a class of persons – correctly described by the Tribunal as former KGB officers in Latvia – of which the applicant is a member. It follows on the authority of Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264 that the exception in s.424A(3)(a) applies to this information.
The Tribunal has not breached s.424A(1) in relation to this email, nor in relation to the other independent country information on which it relied.

Common law procedural fairness - the independent country information

The application to the Tribunal was made before the commencement of s.422B – exhaustive statement of natural justice hearing rule – on 4 July 2002. The question therefore arises whether there was any breach of the rules of procedural fairness at common law in the Tribunal’s treatment of the independent information.
The Tribunal’s decision relied heavily on independent country information, including the email received on 6 June 2003 referred to in the section above. Extracts can be found in the Tribunal’s reasons at pages 276 – 282 of the Court Book. The Tribunal’s findings and reasons at pages 284 – 289 refer extensively to its reliance on this information.
It is clear from a careful reading of the Court Book and the record of the evidence provided at the hearing (Court Book pages 270 – 274) that the applicant was given a number of opportunities to comment on the critical elements in this material. And indeed he did: for example, his migration agent’s submission to the delegate at Court Book pages 87 – 231, his submission with his application to the Tribunal at pages 245 – 249 repeating earlier material, and a submission from his agent after the hearing at pages 254 – 257.
At the hearing the Tribunal member put independent country information to the applicant on:
·suspicious deaths or disappearances of former KGB officers in Latvia
·government persecution or arrests of such persons
·incidents of harm to such persons, including harm inflicted by private citizens
·persecution of Russian speakers or non-citizen residents
·rights of non-citizen residents.
This is recorded at [29] – [32] of the Tribunal’s reasons at pages 272 – 273 of the Court Book.
The Tribunal also raised a range of other critical issues with the applicant at the hearing – see pages 270 – 274 of the Court Book.
Subject to the information to which I refer in the next paragraph, I agree with the Tribunal that the information received in the email of

5 June 2003 was no different from the other independent information on which the Tribunal relied and of which the applicant was aware. It did no more than confirm the other country information on the situation in Latvia.
However, there was one piece of information in the email that was never put to the applicant for comment: the suggestion at [6] in the email that the only suspicious deaths of former KGB officers involved those who had engaged in organised crime. The applicant said this information clearly affected the Tribunal’s decision.
On the other hand the respondent asserted that it had “no bearing whatsoever on the evidence, which was all one way, that State protection was available to former KGB officers, who feared persecution because of their membership of that social group”.
In my view the information on suspicious deaths of KGB officers associated with organised crime is not essential to the Tribunal’s finding on effective state protection. This is confirmed by a careful reading of the Tribunal’s reasons, especially [88]. Certainly failure to give the applicant an opportunity to comment on this information would not have caused any practical injustice to the applicant (Re Minister for Immigration & Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502 at [37]).
The obligation on the Tribunal was to raise with the applicant information that was adverse, credible and significant to his claim, and to bring to his attention the “critical issues on which his or her application might depend” (Meadows v Minister for Immigration & Multicultural and Indigenous Affairs (1998) 54 ALD 654 at [670]). In my view the Tribunal met its obligations.
The applicant contended that his case was indistinguishable from that in WAEJv Minister for Immigration & Multicultural & Indigenous Affairs (2003) 76 ALD 597. However, WAEJ is clearly distinguishable. In the present matter, the Tribunal advised the applicant of the substance of the independent country information. In WAEJ it did not (see [34]).

Conclusions

I have rejected both grounds, s.424A and common law procedural fairness.
In my view the findings made by the Tribunal were reasonably open to it on the material before it. I am not satisfied the Tribunal made any legal error going to jurisdiction in coming to its decision. I find that the decision of the Tribunal is a privative clause decision having regard to the authority of the High Court in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

In addition, the decision of the Tribunal was a bona fide attempt to exercise its powers. It clearly related to the subject matter of the Act and to the powers conferred on the Tribunal.
The application must be dismissed.

I certify that the preceding forty-eight paragraphs are a true copy of the reasons for judgment of Mowbray FM

Associate: Natasha Werner

Date: 18 January 2006