SZODW v Minister for Immigration
[2010] FMCA 387
•3 June 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZODW v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 387 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming ethnic persecution in Latvia – Tribunal found that the applicant’s claims were not consistent with relevant country information and rejected them – no reviewable error found – application dismissed. |
| Migration Act 1958 (Cth), ss.424A, 425 Federal Magistrates Court Rules 2001 (Cth) |
| Applicant: | SZODW |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 296 of 2010 |
| Judgment of: | Driver FM |
| Hearing date: | 3 June 2010 |
| Delivered at: | Sydney |
| Delivered on: | 3 June 2010 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,865 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 296 of 2010
| SZODW |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The decision was made on 18 January 2010. The applicant is stateless. She travelled to Australia on an alien’s passport issued by the Republic of Latvia and arrived in April 2009. She applied for a protection visa on 14 July 2009.
The applicant was interviewed by the Minister’s delegate on 14 September 2009 and the delegate refused the visa on 21 December 2009. The applicant sought a review of that decision by the Tribunal on 19 October 2009. The Tribunal was unable to make a favourable decision on the papers and invited the applicant to a hearing by a letter dated 30 October 2009.
The hearing was conducted on 30 November 2009. The applicant attended and was assisted by a Russian interpreter. The Tribunal’s decision records that there was an extensive discussion at the hearing between the applicant and the presiding member concerning the circumstances of the Russian minority in Latvia. Somewhat curiously, the applicant told the Tribunal and me that her ethnicity is, in fact, Polish. However, it seems that she identifies with the Russian minority in Latvia, speaks Russian and has relatives in Russia.
There was an extensive discussion at the Tribunal hearing between the applicant and the presiding member concerning country information and the question of whether, and to what extent, Russians in Latvia are still subject to attacks and other discrimination. The applicant claimed that she and other members of her family had been subjected to repeated attacks and humiliations, such as the refusal of service in shops and being turned off public transport. The applicant claimed that although she is married to a Latvian and has two Latvian children and can speak Latvian, she still suffered persecution because she spoke with an accent.
The applicant told me from the bar table today that although she felt she could obtain Latvian citizenship without difficulty, that would result in a disadvantage to her in that it would restrict her ability to travel to Russia. The applicant claimed before the Tribunal and continues to claim that her difficulties are shared with the Russian minority and other minorities in Latvia and are not related to the absence of citizenship. The applicant conceded that while state-sponsored persecution had apparently ended with the admission of Latvia to the European Union, the Latvian state continues to tolerate or ignore persecution occurring within Latvian society.
At the hearing, the Tribunal member discussed with the applicant country information, including recently available country information, that pointed to an improving situation in Latvia. The presiding member explained to the applicant that he found her claims inconsistent with that country information. The Tribunal did not accept, having regard to the independent country information, that state protection was withheld from the applicant in Latvia or that Latvia did not provide protection to its citizens in accordance with relevant international standards. The Tribunal accepted the applicant’s claim that on 15 December 2008, she had been attacked and bashed and that the police were unable to find the culprits. The Tribunal did not accept that that attack was ethnically motivated. Neither did the Tribunal accept that the police had refused to assist. The Tribunal concluded that the applicant’s fears of future persecution in Latvia were not well‑founded.
These proceedings began with a show cause application filed on 15 February 2010. The applicant continues to rely upon that application. There are three grounds in the application which I incorporate in this judgment:
1. Reliance on unrelated information.
The Tribunal did not believe that I had been subjected to persecution, because, according to the Tribunal, “there was nothing in the information suggest that the Latvian Government persecuted non-citizen Latvians of Russian origin”. The Tribunal was to take into account information issued by Research Directorate of the Canadian Immigration and Refugee Board (referred by the Tribunal in paragraph 43). According to the organisation, “the extreme right seemed to have a somewhat stronger position in Latvia that in the other two Baltic states, that there was atmosphere of social intolerance towards the ethnic Russians an that it had been speculated that the object of Latvian legislation on language and citizenship was to force most of Russians to emigrate from Latvia”. In addition the Tribunal ignored other relevant information submitted by me during the course of the hearing (further information will be provided shortly).
2. Identifying the wrong issue.
The Tribunal said (in relation to the attracts) that “the Australian courts have observed that no country can guarantee that people there will at all times, and in all circumstances, be safe from violence”. The Tribunal ignored the fact that my daughter and I had been attacked on a number of occasions, that we had lodged statements with the police (after each attack) and that the police had failed to protect us. Therefore the question to be examine was not [whether] a country can guarantee that people there will at all times, and in all circumstances, be safe from violence but whether the state failed to protect us after attack[s] had occurred.
3. Failure to comply with s.424A of the Migration Act.
Pursuant to the section referred to above the Tribunal is obliged to give any particular of any information (which is specifically about the applicant not about a class of persons) which would be a reason or a part of the reason to affirm the decision under review; to endure that the applicant understands the relevance of this information and to give him an opportunity to comment on this information.
The Tribunal accepted that I was attacked on the street. It did not accept, however, that the attacks were for a Convention-related reason. During the course of the hearing the Tribunal did ask questions about the attacks. I, however, was of the view that my explanations were accepted as convincing and plausible (that’s why I provided no further information or evidence after the hearing). Given that namely the said issues [played] the critical role in the decision and were specifically about me it seems tome that the Tribunal was obliged to ensure that I understood the relevance of such critical information and give me the opportunity to comment on it and/or to provide the Tribunal with further evidence.
The application is supported by an affidavit filed with it, which I accepted as a submission. The applicant filed further written submissions on 2 June 2010.
The only evidence I have before me is the court book filed on 30 March 2010.
The applicant’s first contention is that the Tribunal relied on what she describes as unrelated information. I take this to mean that the Tribunal took into account irrelevant considerations or failed to take into account relevant considerations based on country information. It is clear from the Tribunal decision that the Tribunal did have regard to country information concerning current circumstances in Latvia. The Tribunal was entitled to have regard to the country information it considered to be relevant to its inquiry.
I am satisfied that all of the country information referred to by the Tribunal was relevant to its inquiry. The Tribunal’s factual conclusions concerning the existence or non-existence of persecution against the Russian minority in Latvia were matters for the Tribunal and the Court cannot review them.
The applicant sought to persuade me that the Tribunal’s decision was inconsistent with an earlier decision of the Tribunal made on 4 December 2006. That decision bears the medium neutral citation [2006] RRTA 202. In that decision, the same presiding member found that an ethnic Russian from Latvia did have a well-founded fear of persecution and should receive a protection visa. The Tribunal must make its decisions on the facts of the individual cases before it. Each case turns on its own facts. In the 2006 decision referred to me by the applicant, the applicant for protection had made detailed and corroborated claims of serious past harm. The country information then available to the Tribunal indicated that state protection from the Latvian authorities against future such harm might be ineffective. In the present case, the Tribunal had the advantage of more recent country information detailing how circumstances had improved following the entry of Latvia into the European Union.
In the present case, the Tribunal was entitled to conclude, as it did, that it was unlikely that the systemic persecution claimed by the applicant had occurred in recent times and that effective state protection from the Latvian authorities is now available. I see no particular significance in a decision some years ago from the same presiding member with a different outcome.
The applicant also claimed during her oral submissions that she thought that her claims had been accepted by the presiding member and that she now felt that he was biased. There is no evidence to support the claim of bias and such a claim should not be made lightly. The record of what occurred at the Tribunal hearing, contained with the Tribunal’s reasons, satisfies me that the Tribunal put the applicant clearly on notice about the difficulties it had with her assertions. She should have been left in no doubt that the significant and essential issue on which the review was likely to turn was the inconsistency of her assertions with current available country information. In my view, far from demonstrating bias, the presiding member demonstrated that the hearing opportunity afforded the applicant was a fair and effective one.
The second ground is that the Tribunal identified the wrong issue. As is noted in the Minister’s submissions, the applicant claims that the Tribunal ignored her assertions that she had been attacked. The Tribunal accepted that the applicant had been attacked but did not accept that she had been attacked on a regular or systematic basis. Further, the Tribunal did not accept that the applicant had been refused or would be refused state protection when attacked.
The third ground asserts a breach of s.424A of the Migration Act 1958 (Cth) (“the Migration Act”). As I understand that claim, the applicant considers that she should have been given the opportunity to comment in writing on the Tribunal’s doubts about her claims. As is noted in the Minister’s submissions, the Tribunal is not under an obligation to disclose, pursuant to s.424A, its reasoning processes. The Tribunal met its obligations arising pursuant to s.425 of the Migration Act and no relevant obligation arose under s.424A.
I find that the applicant has failed to establish any jurisdictional error by the Tribunal. It follows that the decision is a privative clause decision and the application must be dismissed.
Costs should follow the event in this case. The Minister seeks scale costs. The applicant did not wish to be heard on costs. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,865 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate: Rebecca Chen
Date: 10 June 2010
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