SZIUV v Minister for Immigration - [2006] FMCA 1235

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIUV & ORS v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1235

MIGRATION – Protection visa – Refugee Review Tribunal – no jurisdictional error.

Migration Act 1958

Applicant:

SZIUV & OTHERS

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS & ANOTHER

File number:

SYG 1328 of 2006

Judgment of:

Phipps FM

Hearing date:

4 August 2006

Date of last submission:

4 August 2006

Delivered at:

Sydney

Delivered on:

4 August 2006

REPRESENTATION

Applicant appearing in person:

Counsel for the Respondent:

Mr T Reilly

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application is dismissed.
The applicant pay the first respondent’s costs fixed at $4,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1328 of 2006

SZIUV & OTHERS

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS & ANOTHER

Respondent

REASONS FOR JUDGMENT

This is an application for prerogative writs in respect of a decision of the Refugee Review Tribunal dated 30 March 2006. The applicants are husband, wife and daughter. Only the husband made specific claims under the Refugee Convention. His wife and child rely on the membership of his family. For convenience I will call the husband the applicant. The Tribunal records that in his oral evidence in a hearing before the Tribunal, differently constituted, the applicant made claims in relation to his wife. The Tribunal whose decision I am dealing with dealt with those claims by the applicant’s wife.
The applicant and his family arrived in Australia on 29 November 1996. They applied for a protection visa on 13 December 1996. The application was refused on 4 August 1998. The applicants applied to the Refugee Review Tribunal. The first Tribunal decision was set aside and the subsequent Tribunal held a further hearing. The applicant is a citizen of Latvia. His wife and daughter are Stateless. The applicant and his family are ethnic Russians. The applicant claimed that when he was in Latvia the situation for ethnic Russians was catastrophic. Russians were sacked from their jobs, they were checked for language proficiency or accent, Russian schools were closed, Russians would be insulted and unable to get court or police protection.
Specifically, the applicant claimed he was attacked by Government backed Latvian Nationalists in 1995. He was badly injured. There was an attempt to murder him. He still has permanent mental problems, which the Tribunal accepted, following that attack. He received a number of threats on the phone, he spent a year hiding from the gangsters, and he went to the police and legal authorities without result. He claimed that his wife had been attacked because she was Russian and those attacking her attempted to rape her. He said that therefore he had a well-founded fear of persecution, because of his Russian ethnicity, if he were to return to Latvia.
The Tribunal records what occurred during the hearing it conducted. It elaborates on the attacks on the applicant and his family and the situation for Russians in Latvia, while the applicant and his family were there and the current situation. The Tribunal accepted that the applicant had been seriously assaulted and that it was a gang of extremist Latvian Nationalists, and it also accepted that it was because of his Russian ethnicity. The Tribunal said it had insufficient evidence to enable a finding that the assailants were Government backed. The Tribunal accepted it was only under pressure that in 1994 the Latvian Government took steps back from the policies of ethnic exclusion and it noted that there was evidence that pro-independence extremist groups lingered on until the mid-1990s.
The Tribunal accepted that at that time there may have been an environment in which extreme nationalists felt they could assault non-Latvians with some impunity. The Tribunal accepted that the applicant has a genuine and strong subjective fear of harm if he returns to Latvia. It accepted the consequences of the severe assault on him which includes post-traumatic stress disorder and major depression. The Tribunal summarised, in some detail, the independent country information it had looked at and the evidence from the applicant himself about the activities of extremist Latvian groups currently.
The Tribunal said it was satisfied that antipathy towards Russian background members of society is now expressed largely through political avenues. It said that the evidence did not support a view that the problem is so widespread or serious that being a person of Russian background in Latvia is sufficient to give rise to a real chance of serious harm. Consequently, while the Tribunal accepted the applicant has a genuine and strong subjective fear, it is not well-founded. The Tribunal considered the applicant’s evidence about his parents and brother in Latvia and concluded that, because they had not told the applicant of any harms or threats in recent years, the Tribunal was satisfied there had not been any.
The Tribunal referred to the assault being some eleven years ago and the evidence that extremist groups were more active in the mid-1990s than they are now. The Tribunal said there is no recent evidence that the extremist groups are motivated to harm him or are in a position to do so. The Tribunal went on to consider whether, if the applicant returned to Latvia and was to express views in favour of the equal treatment of people in Latvia, as he had in the past, whether that might lead to him being harmed. The Tribunal noted that the applicant had not expressed any interest in expressing such views but nevertheless, considered the issue.
After referring to the independent evidence and in particular the most recent United States State Department report, it concluded that he would not be at risk of serious harm in those circumstances. The Tribunal considered the claim of an attempted sexual assault on the applicant’s wife in 1992. It said it had insufficient evidence to make any firm findings but it again referred to the current situation in Latvia and concluded that she would not face a real chance of persecution. Consequently, the Tribunal affirmed the decision not to grant protection visas.
The applicant’s amended application and submissions to the court refers to the serious assault in 1995. It says that the finding by the Tribunal, that it was unable to make a finding that it was sponsored or backed in some way by the Government, shows that it does not understand the fundamental nature of the Convention. The amended application says it is enough to prove that authorities are unable or unwilling to protect. The Tribunal correctly stated the test to be applied. In summary, it’s finding on this point was that in the mid-1990s the authorities may have been unable or unwilling to protect. It found that was not the case at the time of its decision in February 2006. It has applied the correct test.
The applicant claims that the Tribunal failed to take into account his mental harm and then, the way in which the amended application is expressed, shows that the applicant perhaps misunderstands the difference between having a subjective fear, and that fear being well founded at the time of decision. Again, the Tribunal has applied the correct test and has not made any error in the way it dealt with the evidence and findings about the applicant’s mental state. In summary, those two things appear to be the basis on which the amended application is put.
There has been no jurisdictional error. The Tribunal has made findings of fact as it is entitled to do. The application is dismissed.
The usual rule that an unsuccessful party pays a successful party’s costs by way of an order should apply in this case. The amount of $4,500 which is sought is less than the amount fixed under the court rules and so it is a reasonable amount.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Phipps FM

Associate:

Date: 24 August 2006