SZBLX v Minister for Immigration
[2005] FMCA 773
•7 June 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBLX v MINISTER FOR IMMIGRATION | [2005] FMCA 773 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution as a homosexual in Latvia – no reviewable error found – application dismissed. |
| Migration Act 1958 (Cth), s.57 |
| NBFP v Minister for Immigration [2005] FCAFC 95 SZBDN v Minister for Immigration [2005] FCA 656 VGAC & Anor v Minister for Immigration [2004] FMCA 495 |
| Applicant: | SZBLX |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 1928 of 2003 |
| Judgment of: | Driver FM |
| Hearing date: | 7 June 2005 |
| Delivered at: | Sydney |
| Delivered on: | 7 June 2005 |
REPRESENTATION
The applicant appeared in person, assisted by Mr A Volonski
| Counsel for the Respondent: | Mr J Potts |
| Solicitors for the Respondent: | Sparke Helmore |
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 $4,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1928 of 2003
| SZBLX |
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”) completed on 8 August 2003 and handed down on 4 September 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is a stateless former resident of Latvia. He had made claims of persecution in Latvia on various bases. He came to Australia on 26 May 2000 on a student visa. On 29 June 2001 he applied for a protection visa. His claims to fear persecution included his membership of a particular social group, male homosexuals in Latvia, and his Russian ethnicity. Other relevant background information is set out in paragraphs 3 to 16 of written submissions prepared on behalf of the Minister by Mr Potts. I adopt those paragraphs by way of background for the purposes of this judgment:
On 16 November 2001 the delegate wrote to the applicant pursuant to s.57 of the Migration Act 1958 (Cth) (“the Migration Act”), giving him particulars of adverse information, and inviting his comment.[1] A response from the applicant’s adviser was received on 23 January 2002.[2]
[1] court book, pages 27-29.
[2] court book, pages 32-33 with enclosed documents at 34-47.
After the Minister’s delegate refused the applicant’s application for a protection visa on 24 April 2002, he applied to the RRT to review that decision on 24 May 2002.[3]
[3] court book, pages 57-61.
On 28 May 2003 the RRT sent a letter to the applicant pursuant to s.424 inviting the applicant to provide further information.[4] On 23 June 2003 the RRT received further information from the applicant’s adviser.[5]
[4] court book, pages 68-69.
[5] court book, pages 70-72. The same document, although dated 19.06.03 appears to have been received again on 30 June 2003.
The applicant attended a hearing on 18 July 2003.[6]
[6] court book, page 164.
The RRT made its decision on 8 August 2003, and it was handed down on 4 September 2003, affirming the decision of the delegate.[7]
[7] court book, pages 168-196.
The applicant’s claims
The applicant claimed that he had started a homosexual relationship in the USA when he was 22. He claimed that he and his father had been deprived of Latvian citizenship by a nationalistic government which passed discriminatory laws. The applicant said that the main reason he had decided to flee was his sexual orientation, which in addition to his nationality, had made his life unbearable. He claimed that he had become acquainted with a homosexual of African origin in 1998, and as a result of this relationship, was subject to constant humiliation and insults. He claimed that in the Spring 1999 he and his friend were beaten by unknown Latvians. Despite a complaint to police, the case was not investigated due to a lack of evidence.[8]
He and his friend had also been at a discotheque when fighting broke out. As a result people were arrested including the applicant and his friend. The applicant claimed to have been savagely beaten by Latvian police officers. They allegedly called the applicant “a Russian piggy pufta [sic]” and beat him until he was unconscious. He awoke outside the police station in the freezing cold and contracted frostbite. His friend’s injuries were more severe and he nearly died. As previously a criminal case was instigated. This time the police were accused. Soon after the applicant began getting threatening notes. Two witnesses then emerged who claimed that the applicant and his friend instigated a fight, were abusive and aggressive, and that they assaulted others, were arrested then released, and then beaten by those they had assaulted. Even though the case against the police was subsequently closed, the applicant continued to receive threatening notes.[9]
At the hearing the applicant gave evidence and expanded upon his claims.[10] He also provided a copy of an article.[11]
The RRT’s decision
In relation to the applicant’s claims relating to his homosexuality, the RRT accepted that Latvia, like virtually every other country in the world, had a level of societal discrimination against homosexuals, but that the Latvian government did not discriminate against homosexuals nor was there any evidence that it condoned such discrimination. The official treatment of homosexuals was increasingly tolerant. The RRT was satisfied based on independent information that the Latvian government did not condone the actions of any individual in engaging in criminal activities aimed at causing harm to homosexuals.[12]
The actions of police officers described by the applicant were illegal. The alleged action was not on the evidence before the RRT encouraged or condoned by the Latvian government, nor was there any evidence that the Latvian government was unable or unwilling to discipline police officers acting illegally or contrary to their public duty.[13]
The RRT found that the applicant made no attempt to seek the protection of the Latvian government or the various non-government advocacy groups against the criminal actions of the police (and, of course, of his original attackers) and it was satisfied that such protection would have been, and in the future would be, forthcoming. In such circumstances the RRT could not be satisfied that for persons such as the applicant, in the circumstances of his claims, the protection which would normally be expected of a government was lacking or denied in Latvia, nor that such protection was so ineffectual that the applicant’s fear of a recurrence of that unlawful discrimination was well-founded. The RRT found that the applicant’s fear of serious harm by reason of his membership of a particular social group was not well‑founded because there was in Latvia adequate protection available from the State for criminal harassment and harm by private individuals, whether homophobic strangers, or individual police officers who failed to perform their duty to investigate criminal complaints made by homosexuals and who themselves illegally assaulted complainants.[14]
In relation to the Russian language claim the RRT noted that the applicant had made no claim to have personally experienced harm amounting to persecution by reason of being a Russian speaker in Latvia other than to say he had been verbally insulted. The RRT accepted the independent information that discrimination of the basis of language was prohibited in Latvian law and under the Latvian constitution. The RRT accepted that the applicant had avenues of recourse open to him which he failed to pursue. It was satisfied that there was no suggestion that the government of Latvia condoned or was unable or unwilling to prevent serious harm to residents by private individuals or nationalist organisations because of their nationality or language.[15]
In relation to the statelessness claim, the RRT was satisfied based on the independent information that the Latvian government did not condone discrimination on the basis of language, ethnicity or former nationality, and that the Latvian government had put in place measures which effectively protected, and avenues which provided redress for infringement of, human rights. It was satisfied that the Latvian government was not unwilling or unable to provide effective protection in circumstances claimed by the applicant.[16] The RRT was not satisfied that non-citizen residents of Latvia experienced discrimination serious enough to amount to persecution, nor that the applicant had personally experienced discrimination by reason of his statelessness which was serious enough to amount to persecution.[17]
The RRT was not satisfied that a person with a combination of the characteristics that the applicant claimed to have would be unable to access the avenues of protection and redress which it was satisfied were available in Latvia.[18]
[8] court book, pages 24-25.
[9] court book, page 25.
[10] court book, pages 174-177 at [22]-[34].
[11] court book, page 177 at [35], reproduced at 80-163.
[12] court book, pages 191-192 at [89]-[91].
[13] court book, page 192 at [92].
[14] court book, pages 191-193 at [90]-[95].
[15] court book, page 193 at [96]-[98].
[16] court book, page 193 at [99].
[17] court book, page 194 at [101].
[18] court book, page 194 at [102].
These proceedings commenced with a judicial review application filed on 19 September 2003. An amended application was filed on 14 March 2005. At the commencement of the hearing today the applicant stated that he did not wish to rely on either of those applications, rather he confined himself to one, or possibly two, issues in the consideration of his claim to fear persecution in Latvia as a homosexual.
The applicant had filed an outline of written submissions on 3 June 2005. He relied upon paragraphs 11 to 18 of those written submissions. The applicant asserts that the RRT ignored material submitted to it pointing to a failure of State protection to homosexuals in Latvia and in consequence (or possibly in any event) the RRT misunderstood or misapplied the concept of persecution under the Refugees Convention.
I permitted the applicant to be assisted by his migration agent Mr Volonski as a lay advocate. In making that decision I took into account that the applicant was having difficulty expressing himself orally even with the assistance of a Russian interpreter. Secondly, no objection was raised on behalf of the Minister by Mr Potts. The circumstances in which the Court will permit an unqualified person to represent an applicant are limited. It will usually not be permitted at a final hearing. In the present case the hearing was probably shortened by the more efficient and effective way in which Mr Volonski was able to articulate the applicant's oral submissions.
The applicant asserts that the RRT failed to deal with or failed properly to deal with information provided by him supporting his claims. The RRT wrote to the applicant and Mr Volonski on 28 May 2003 seeking further information pursuant to s.424A of the Migration Act[19]. Mr Volonski replied by letters dated 30 May 2003 and 19 June 2003[20]. In that correspondence Mr Volonski provided information to the RRT concerning the treatment of homosexuals in Latvia. In addition, towards the end of the hearing conducted by the RRT the applicant or Mr Volonski presented a detailed report on sexual orientation discrimination in the Baltic States[21]. It is this report in particular that the applicant asserts the RRT failed to deal with. It cannot be said that the report was ignored. Commencing at paragraph 35 of the RRT decision on page 177 of the court book, the presiding member discusses the report at some length. The presiding member also refers to the report under the heading, “Findings and Reasons” at paragraph 90 of the RRT decision and what is said in the balance of the reasons on a fair reading in my view can be taken to either draw support from or take account of that report.
[19] court book pages 68-69
[20] court book, pages 70-75
[21] court book, commencing at page 80
The nub of the applicant's concerns, as articulated by Mr Volonski, is that the RRT failed to deal with the reality of the asserted failure of State protection of homosexuals in Latvia. The applicant does not dispute that structures exist in Latvia which might in theory be employed in order to deal with the asserted failure of State protection. However, he asserts that in reality those structures are ineffective and that in failing to deal with the real situation in Latvia rather than the theoretical form of State protection the RRT erred. I reject that contention and accept Mr Potts submissions on that issue.
The presiding member in dealing with all of the information before her did move from the theoretical to the particular. The applicant had made claims of having suffered serious harm because of his homosexuality not only by private individuals but also at the hands of the Latvian police. The presiding member appears to have proceeded on the basis that the applicant's claims of having suffered serious harm should be treated as if they were true. It logically follows from that that the RRT should be taken to have accepted that the applicant had suffered persecution in Latvia on account of his sexual orientation. Some of that persecution was perpetrated by the Latvian police.
Nevertheless, the presiding member found that effective State protection was available in Latvia even against the risk of harm being suffered at the hands of State agents such as the police. The presiding member deals with this issue in particular at paragraphs 90-93 of her reasons[22]. The presiding member found that the applicant could take advantage of the assistance of homosexual advocacy groups and human rights advocacy groups in order to deal with any unlawful acts by the police or others.
[22] court book, pages 191 and 192
The presiding member also took into account country information which indicated that attitudes in Latvia towards homosexuals including by Government agents such as the police was improving. This reasoning formed in my view a rational foundation for the ultimate conclusion reached that the applicant did not have a well-founded fear of persecution in Latvia on account of his sexual orientation should he return there. This conclusion was open to the presiding member on the material before her. She took into account the material presented by the applicant. She did not fail to understand the task that she had to perform. She did not misunderstand or misapply the definition of persecution to be derived from the Refugees Convention.
The applicant clearly disagrees with the conclusions reached by the presiding member. He is entitled to do so. Another presiding member may have reached a different conclusion based on the same information. It is, however, beyond the scope of these proceedings to consider the merits of the RRT decision.
The applicant sought to draw support from the decision of this Court in VGAC & Anor v Minister for Immigration [2004] FMCA 495. Like Hely J in SZBDN v Minister for Immigration [2005] FCA 656 at [18], I see no relevance in VGAC to these proceedings. VGAC identified as a jurisdictional error a failure to recognise that the definition of serious harm in s.91R of the Migration Act is a non exhaustive definition and in particular serious harm extends beyond physical harm. As Mr Potts noted in his oral submissions that finding was confirmed recently by the Full Federal Court in NBFP v Minister for Immigration [2005] FCAFC 95 at [52]. There is no issue in this case of the misunderstanding or misapplication of the definition of serious harm. The issue in this case is whether the RRT misunderstood or misapplied the concept of effective State protection. I find that it did not.
There is no jurisdictional error in the decision of the RRT. The decision is therefore a privative clause decision and the application must be dismissed. I do so.
On the question of costs, the application having been dismissed, Mr Potts seeks an order for costs on behalf of the Minister. Mr Potts seeks an order fixed in the sum of $4,500 on a party party basis. That is consistent with orders made in matters of similar complexity and I have no difficulty accepting it. The applicant did not wish to be heard on the question of costs. 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 $4,500.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 15 June 2005
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