SZODW v Minister for Immigration and Citizenship [2011] FCA 5 (11 January 2011)

Last Updated: 19 January 2011

FEDERAL COURT OF AUSTRALIA

SZODW v Minister for Immigration and Citizenship [2011] FCA 5

Citation:		SZODW v Minister for Immigration and Citizenship [2011] FCA 5
Appeal from:		SZODW v Minister for Immigration & Anor [2010] FMCA 387
Parties:		SZODW v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 748 of 2010
Judge:		KATZMANN J
Date of judgment:		11 January 2011
Legislation:		Migration Act 1958 s 36(2)
Cases cited:		Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; [2003] HCA 2 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003)197 ALR 389; [2003] HCA 26 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1; [2002] HCA 14 Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28 Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 205 ALR 487; 222 CLR 1; [2004] HCA 18 SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471; [2004] FCAFC 123
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	43
Counsel for the Appellant:	The appellant appeared in person.
Counsel for the Respondents:	Ms A Mitchelmore
Solicitor for the Respondents:	Sparke Helmore

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 748 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZODW Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	KATZMANN J
DATE OF ORDER:	11 JANUARY 2011
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal is dismissed.
2. The appellant is to pay the first respondent’s costs.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 748 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZODW Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	KATZMANN J
DATE:	11 JANUARY 2011
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant seeks asylum in this country. She professes Polish ethnicity but was born and raised in Russia. In 1988 she moved to Riga in Latvia, where she remained after the collapse of the Soviet Union, marrying a Latvian citizen in 1992. She does not enjoy Latvian citizenship, herself, however. She travelled to Australia on an “alien’s passport” issued by the Government of Latvia, arriving on 14 April 2009. On 14 July 2009 she applied for a protection visa. In that application, she professed to fear that she would die in Latvia and that she was “afraid of the gail and political” (sic). She identified the Latvian Government and Federal Police as prospective sources of harm to her, were she to return. She said she left Latvia because she did not have citizenship and “for this” could not find a job.
2. To qualify for a protection visa she needed to satisfy the first respondent (“the Minister”) that she was a non-citizen to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol: Migration Act 1958 (Cth) (“the Act”), s 36(2). Article 1A(2) of the Convention as amended by the Protocol relevantly defines a refugee as a person who:

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

3. A well-founded fear is one with “a real substantial basis” to it: Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 572.
4. Section 91R(1) of the Act provides that Article 1A(2) of the Convention does not apply unless the reason or reasons for the fear of persecution is or are “the essential or significant” reason or reasons and the persecution involves “serious harm” to her or him and “systematic and discriminatory conduct”. “Serious harm” is defined in subs (2).
5. The appellant was interviewed by the Minister’s delegate on 14 September 2009 but was unable to satisfy him that she was a person to whom Australia owed protection obligations and her application was therefore rejected. She sought a review on the merits before the second respondent (“the Tribunal”) but she also failed to persuade the Tribunal of her entitlement to protection.

The Tribunal hearing

6. Before the Tribunal the appellant 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, being turned off public transport, and being attacked in the street. Although she is married to a Latvian, has two Latvian children and can speak Latvian, she maintained she was persecuted because she spoke with an accent. She contended that while state-sponsored persecution had ended with the admission of Latvia to the European Union, the Latvian state continues to tolerate or ignore persecution occurring within Latvian society.
7. She told the Tribunal that she left Latvia, not for the reason stated in her application, but because she was unable to tolerate the conditions under which Russians had been forced to live there. She said she had been attacked and bashed on 15 December 2008 and her assailants had kicked the baby in the pram and the pram had turned upside down. She said that before this she had never thought of leaving. She said she and her daughter had been attacked on a number of occasions and there had been acts of vandalism including the front door of her apartment having been set on fire. Despite reporting these matters to the police, she said no action was taken. She professed to be afraid to go out “for the last five years”.
8. The Tribunal did not rule out the possibility that the appellant had been attacked in the street on 15 December 2008 as she had claimed but it did not accept that the attack was ethnically motivated or that the police had refused to help her. It had regard to independent country information which it found inconsistent with the appellant’s story. It inferred from that information that state protection was not withheld from her and it did not accept that Latvia did not protect its citizens in accordance with international standards. It concluded that her fears of future persecution in Latvia were not well-founded.
9. The appellant then applied to the Federal Magistrates Court for an order that the respondents show cause why a remedy should not be granted in the exercise of the Court’s jurisdiction under s 476 of the Act. That jurisdiction is limited to review for jurisdictional error only. See ss 474 and 476 of the Act and Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; [2003] HCA 2.

The proceeding before the Federal Magistrate

10. In her application to the Federal Magistrates Court the appellant pleaded three grounds of review (without alteration):
    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”. 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 to me 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.

11. The appellant informed the Federal Magistrate that she could obtain Latvian citizenship without difficulty but asserted that it would disadvantage her because it would restrict her ability to travel to Russia. She attributed her difficulties to her membership of an ethnic minority.
12. With respect to the first ground, the Federal Magistrate found that it was clear from the Tribunal’s decision that it did have regard to country information concerning current circumstances in Latvia. Further, his Honour held that the Tribunal was entitled to have regard to the country information it considered to be relevant to its inquiry. He considered that it was not of any particular significance that there had been a decision some years ago from the same presiding member with a different outcome and he found no evidence of bias.
13. With respect to ground 2, the Federal Magistrate found that the Tribunal did consider, and in fact accepted, the appellant’s claim that she had been attacked but did not accept that she had been attacked on a regular or systematic basis, or that she had been refused or would be refused state protection when attacked.
14. I pause to observe that, although it is true that the Tribunal considered the appellant’s claim that she had been attacked, the learned Magistrate was in error when he stated that the Tribunal accepted she had been. The Tribunal made no such finding. It said it was unable to rule out the possibility. That is quite a different matter. But nothing turns on the error.
15. The Federal Magistrate understood ground 3 to be a claim that the appellant should have been given the opportunity to comment in writing on the Tribunal’s doubts about her claims. His Honour accepted the submission of the Minister that the Tribunal is not under an obligation to give advanced notice of its reasoning processes.
16. Thus, his Honour was unable to identify any jurisdictional error affecting the Tribunal’s decision and dismissed the application for review.

The appeal to this Court

17. On 24 June 2010 the appellant filed in this Court a notice of appeal from the decision of the Federal Magistrate. It pleaded the following grounds of appeal (without alteration):
    1. It should have been concluded that the Refugee Review Tribunal failed to take into account relevant information as well as its own decision (given by the same Tribunal member).
       
    2. It should have been concluded that the Refugee Review Tribunal failed to address the question of adequate state protection.
       
    3. It should also have been concluded that the Refugee Review Tribunal failed to comply with section 424A of the Migration Act.
       
18. The appellant appeared in person with the assistance of a Russian interpreter. She also filed written submissions.

Ground 1: Failure to take into account relevant information

19. At the hearing the appellant submitted that the information the Tribunal failed to take into account was “the fact that the authorities in Latvia persecute ethnic minorities.” She said: “The Tribunal found that the State of Latvia does not persecute ethnic minorities, but that’s the case. The state indeed does not persecute ethnic minorities, however, it’s – the persecution is carried out by nationalists within the country”. She said that the Tribunal did not take into account her contention that nationalists in the country persecuted ethnic Russians.
20. What I understood the appellant to be saying, in effect, is that the Tribunal did not take into account the substance of her complaint which was that she feared persecution from nationalist attacks. If she is right, then this could amount to jurisdictional error. See Dranichnikov v Minister for Immigration and Multicultural Affairs (2003)197 ALR 389; [2003] HCA 26.
21. In fact, however, the Tribunal did consider her claim. Indeed, the Tribunal referred to claims made by an ethnic Russian applicant in 1999 that she had been attacked by members of a Latvian nationalist organisation who had threatened to kill her and that the police had refused to offer her protection. The Tribunal noted that such claims had been mentioned in a report from the Department of Foreign Affairs and Trade, which found they were “not outside the realms of possibility”. It also accepted that problems remained with the integration of the ethnic Russian community.
22. The second basis for this ground was the appellant’s claim that in an earlier decision the same Tribunal member had found in favour of an ethnic Russian who reported fears of persecution in Latvia: [2006] RRTA 202. In that case the member had accepted that the applicant had been attacked by Latvian nationalists, that the reason for the attack was that she had been fighting for her rights and that there was a real chance that, if she were to return to Latvia now or in the foreseeable future, she would again be attacked by nationalists. The Tribunal also accepted that the objective of the Latvian discriminatory legislation on citizenship and language was to force members of the Russian community out of Latvia.
23. The Federal Magistrate rejected this complaint and he was correct to do so. The apparent inconsistency between the approaches of the Tribunal member in the two cases is explicable on the facts. As his Honour said:

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.

24. In her written submissions the appellant raised a question whether, in the light of the different approaches taken by the Tribunal member in the two cases, he was “procedurally unfair or biased”. The short answer to her question is “no”. The Federal Magistrate said:

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.

25. I am not satisfied that the Federal Magistrate fell into error. The Tribunal was entitled to rely on the country information and use it to test the appellant’s credibility. As the Full Court observed in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]:

By s 420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.

26. There is no evidence that the Tribunal was actually biased against the appellant nor anything to support a conclusion that a fair-minded lay observer, properly informed as to the nature of the proceedings, the matters in question and the relevant conduct might reasonably apprehend that the Tribunal might not bring an impartial mind to the resolution of the issues (Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 at [27]- [28]; [2001] HCA 28).
27. There is no substance to the first ground of appeal.

Ground 2: Failure to address the question of adequate state protection

28. At the hearing in this Court the appellant submitted:

[T]he state doesn’t defend its citizens. It takes matters to court where the matters drag out for years - papers are lost, and so on. And then five or six years later you can’t prove anything. Then they dismiss you from work. The state closes its eyes to this. They find some other reason to dismiss you, and so there’s no protection in that sense. In other words, the state just doesn’t do anything. The state doesn’t see you.

29. She went on to tell the Court that she had been dismissed from her employment as a physiotherapist for the stated reason that her knowledge of the Latvian language was inadequate and she had trouble finding other work.
30. In her written submissions the appellant accepted that no country can guarantee that people will at all times be safe from violence but said (without alteration):

What Australia can guarantee, though, is that should the violence occurs it will be thoroughly investigated by the police.

I said on a number of occasions my daughter and I had been attacked, that we sought police protection after the attacks and that the police did nothing to investigate the matter, did nothing to protect us. Therefore, the relevant issue is whether the state is able to protect an individual from violence. This issue (state protection) was totally overlooked by the Tribunal.

31. Consequently, as she put it, the Tribunal identified the wrong issue and failed to address a relevant issue. If she is right, then the Tribunal would, indeed, have fallen into jurisdictional error: Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1; [2002] HCA 14. In fact, however, the Tribunal did not fall into the kind of errors of which appellant complained.
32. The Federal Magistrate dealt with this question shortly. His Honour said (at paragraph 15 of his reasons):

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.

33. Once again, I am unable to discern error in the Federal Magistrate’s decision to reject this challenge to the Tribunal’s decision. There is no doubt that the Tribunal addressed the question of adequate state protection. It considered the matter at length. It accepted that there was a continuing problem with integrating ethnic Russians in Latvia. It simply did not accept – on the basis of the independent information available to it – that she had been attacked or otherwise persecuted in the way she claimed “for reasons of her race or her membership of any particular social group for the purposes of the Refugees Convention such as non-citizen Latvians, non-citizen Latvians of Russian origin or Russian speakers”. The Tribunal said it could “obviously not rule out the possibility that she had been attacked in the street as she described” but observed that no country can guarantee people will always and in all circumstances be safe from violence. It referred to the obligation of governments to take reasonable measures to protect the lives and safety of people, including by an appropriate system of criminal law and the provision of a reasonably effective and impartial police force and justice system, citing Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18; (2004) 205 ALR 487 at [26] (reported at 222 CLR 1; [2004] HCA 18). But it said that none of the information available to it suggests that there is a failure on the part of the Latvian Government to conform to its obligations in this respect. In particular, it said, there was nothing in the material to suggest that Latvian authorities (and in particular the police) discriminate against non-citizen Latvians of Russian origin by failing to protect them from criminal acts by Latvian citizens as the appellant claimed. It referred to her own account but reiterated:

I do not accept on the basis of the independent information available to me that there is a selective and discriminatory withholding of State protection from non-citizen Latvians of Russian origin for a Convention reason of the sort referred to in Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1.

34. This ground must also be rejected.

Ground 3: Failure to comply with s 424A

35. Section 424A provides:

424A Information and invitation given in writing by Tribunal

(1) Subject to subsections (2A) and (3), the Tribunal must:

(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear 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 the consequences of it being relied on in affirming the decision that is under review; and

(c) invite the applicant to comment on or respond to it.

36. In her written submissions the appellant said that the Tribunal accepted that she and her daughter were attacked in the street but did not accept that the attacks were for a Convention-related reason. I observed earlier, that is not correct. The Tribunal made no finding that the attacks occurred. It simply said the possibility could not be ruled out. That is quite a different matter. She then went on to say that during the Tribunal’s questioning of her about her attacks she was “absolutely [scil] certain” that her explanations were accepted. The result, she said, was that the Tribunal deterred her from obtaining further evidence by leading her to believe that her claims had been accepted. She submitted that the Tribunal was obliged under s 424A to write to her alerting her that it did not accept that the attacks were for a Convention-related reason. Again she queried whether the Tribunal’s failure to write to her in the terms required by s 424A meant that it was “procedurally unfair” or biased.
37. At the hearing the appellant confessed to a limited understanding of the section but offered the following submission:

THE APPELLANT: ...Perhaps certain – more questions should have been asked of me, and I could have answered those questions. Perhaps there were – I could have brought other witnesses along with me, such as other people from Latvia who are in a similar position to me. Also, a Mr Short, who was a tribunal member, said that no state is capable of fully protecting its citizens, in which case, nobody on Earth would ever get refugee status. But I can see that other countries at least try to find what happened after the event, but in Latvia they pretend you don’t exist.

HER HONOUR: Is there anything you want to tell me?

THE APPELLANT: Perhaps not.

38. The appellant did not include the transcript of the hearing before the Tribunal in the appeal book and did not refer me to anything the Tribunal said to her that could have given her the impression she claims to have gained from what the member said. The Tribunal’s reasons summarise what the member said he put to her. That summary is inconsistent with the appellant’s submissions. For this reason I am unable to accept them. I agree with the Federal Magistrate’s conclusion included in the passage from the judgment which I quoted above that she was clearly on notice about the difficulties the Tribunal had with her assertions. The Tribunal said (at [33]-]36] of its reasons):

[33] I put to the applicant that, as I had said, the difficulty I had was that what she was saying about these continual attacks on her and her family and the fact that she had been afraid to go out of her house for five years did not accord with the independent information available to me...

[34] I noted that the reports did highlight problems in Latvia... There had, for example, been racist attacks in Latvia but non-citizens of Russian origin had not been the victims of those attacks. Those who had been attacked had been people who were visibly different...

[36] I asked the applicant if she understood that it was very difficult for me to believe the sorts of claims she was making about attacks on her, being refused service in shops and being thrown off buses given that there was no support for these claims in the independent information available to me. The applicant said that she understood but she could only prove things by what she said. She said she had not brought any applications to the police or anything with her because she had wanted to leave everything behind.

39. The Federal Magistrate was of the opinion that the Tribunal had complied with s 425 of the Act and that no relevant obligation arose under s 424A and I see no error in that conclusion. As I indicated earlier, there is no justification either for the query about bias.
40. In my view this ground proceeds on a misconception about the obligations of the Tribunal. In SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 at [18]; [2007] HCA 26 the High Court endorsed the observations of Finn and Stone JJ in VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471 at 477; [2004] FCAFC 123 that the word “information” in s 424A:

does not encompass the tribunal’s subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc ...

41. Otherwise, the High Court pointed out, s 424A would effectively require the Tribunal to signal in advance, both its reasons and each step in its prospective reasoning process.

However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence.

42. Before I conclude, however, having regard to the appellant’s concerns that she could have brought other witnesses in a similar position to the hearing had she been forewarned of the Tribunal’s decision, I note that if the appellant is in a position to present cogent and compelling evidence to corroborate her claims, s 417 of the Act allows the Minister, if he thinks it is in the public interest to do so, to substitute for the Tribunal’s decision a decision more favourable to the appellant.

Conclusion

43. The appeal should be dismissed with costs.
    

I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann.

Associate:

Dated: 11 January 2011