FEDERAL COURT OF AUSTRALIA

Tontegode v Minister for Immigration & Multicultural Affairs [2002] FCAFC 131

TONTEGODE V MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS N 1157 OF 2001

BEAUMONT, CARR & SACKVILLE JJ

SYDNEY

15 MAY 2002

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellants pay the respondent’s costs.

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

THE COURT

1                     This is an appeal from a judgment of a single Judge of the Court, dismissing an application for an order for review of a decision of the Refugee Review Tribunal (“RRT”), made on 23 January 2001.  The RRT had affirmed a decision of a delegate of the respondent (“the Minister”) to refuse to grant the appellants a protection visa.  The appellants were unrepresented in this Court, as they were in the proceedings determined by the primary Judge.  The appellants were, however, represented by a migration agent before the RRT.

2                     The appellants are husband and wife.  The male appellant arrived in Australia in February 1999 on a temporary business visa.  His wife had arrived two weeks earlier on a student visa.  Since only the male appellant made claims under the Convention relating to the Status of Refugees (“the Convention”) we shall refer to him as simply the appellant.  On the hearing of the appeal, the female appellant made oral submissions on behalf of the appellant.

3                     Section 36(2) of the Migration Act 1958 (Cth) (“Migration Act”) provides as follows:

“A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.”

Article 1A(2) of the Convention defines a ‘refugee’ as a person who:

“Owing to a 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, is unable or, owing to such fear, is unwilling to return to it.” (Emphasis added.)

4                     The appellant lived in Latvia from 1984 or 1985 (when it was still part of the former Soviet Union), until he came to Australia in 1999.  He travelled to Australia on an alien’s passport, issued by the Republic of Latvia.  The RRT accepted the appellant’s claim that he was a stateless person, but found that his “country of former habitual residence” for the purposes of the Convention was Latvia.

5                     The RRT found, on the information available to it, that the appellant would be able to return to Latvia on his passport.  The RRT observed that, even if this finding were not correct, it would still be necessary for it to consider whether the appellant had a well-founded fear of persecution for one of the Convention reasons.  In this the RRT was correct: see Minister for Immigration and Multicultural Affairs v Savvin (2000) 98 FCR 168.

6                     The appellant applied for a protection visa on 21 May 1999, some three months after he arrived in Australia.  The delegate’s decision refusing to grant the visa was made on 2 July 1999.  As we have noted, the RRT’s decision was made on 23 January 2001. 

7                     In substance, the appellant claimed to fear persecution in Latvia by reason of his Jewish background, his Russian origins and his political views.  In particular, he made the following claims:

• Between 1988 and 1991 he established co-operative businesses concerned with the design of cars.
• In 1992, after Latvia had become independent, he established an engineering design company that employed what he described as a “revolutionary technology”.  The appellant was promised support by the Latvian Government, but the forces of the right won the 1995 election and implemented policies designed to strangle businesses controlled by non-Latvians.
• Despite the fact that the appellant had lived in Latvia for fourteen years and his wife had been born there, neither could become citizens of the country.  They had to endure humiliations in order to obtain alien passports.
• Someone within Latvia’s law enforcement authorities regarded the appellant as an enemy of Latvia.  In consequence in the spring of 1997 his house was burnt down, his dog poisoned and his son bashed at school.
• In 1998 the Latvian Secret Service began to show interest in the appellant, both because of his success at international shows and his perceived “disloyalty” to the Latvian government.  The result was that the applicant, his friends and colleagues were interrogated about their political views, their contacts and future plans.
• The appellant was forced to leave Latvia notwithstanding the years he had invested developing his business.

8                     The RRT, in its careful reasons for decision, made a number of findings critical to the outcome of the appellant’s case:

• The RRT did not accept that the appellant and his wife were ineligible to become Latvian citizens.
• The RRT accepted that the appellant had established a car factory in Latvia and that he believed that he had an agreement with the Latvian Government guaranteeing him certain tax concessions and other commercial advantages. It also accepted that the agreement was not honoured by the Government which took office in December 1995.
• The RRT did not accept the appellant’s claim that this government consisted of right-wing radical nationalists or that it discriminated against non-Latvians or businesses controlled by non-Latvians.
• While the appellant had lost his investment when his factory was forced to close because of government decisions, the RRT did not accept that those decisions were driven by a policy of killing Russian businesses in Latvia.  Nor did it accept that the appellant had been targeted by reason of his Russian ethnicity or any political opinions he might have had relating to the treatment of Russian speaking people in Latvia.  The appellant’s claims in that regard were implausible having regard to both the independent country information and the appellant’s own evidence concerning his freedom to express opinions about the treatment of Russians in Latvia.
• The RRT rejected as implausible the appellant’s claim that he had been contacted by officers of the Latvian Secret Service.  It was not plausible that the whole of the Latvian government could have been arrayed against the appellant, as he had claimed.
• The RRT did not accept that the appellant, his friends and colleagues had been interrogated as he had claimed.
• Because of the adverse view it had formed about the appellant’s credibility, the RRT also did not accept his claim that he had been the subject of a campaign of harassment.  The RRT found that the picture painted by the appellant, of a sustained campaign of harassment of himself and his business by reason of his Russian ethnicity, was implausible.
• As non-citizens of Latvia, the appellant and his wife would not enjoy the same rights as citizens if they returned to Latvia.  They would not, for example, have the right to vote, nor would they be eligible to work in the public sector.  But there were similar restrictions on the rights of non-citizens in Australia.  The RRT did not consider that the imposition of such restrictions constituted “persecution” for the purposes of the Convention.  To the extent that there was a conflict between the country information, which suggested that ethnic Russians were not the subject of discrimination amounting to persecution, and the appellant’s own evidence, the RRT preferred the independent country information.
• While the RRT accepted that there was a level of “societal anti-Semitism” in Latvia, it did not accept that this was encouraged or condoned by the Latvian government.  Indeed, the evidence suggested that the Latvian government was addressing the problem.
• The RRT did not accept that there was a real chance that either the appellant or his wife would be persecuted by reason of their ethnicity (Russian or Jewish or both) or in consequence of the appellant’s political opinions, if they were to return to Latvia.

9                     Before the primary Judge, the appellant seems to have raised two arguments.  The first was that the RRT’s reasons failed to comply with the requirements specified in s 430(1) of the Migration Act.  As the primary Judge pointed out, this ground had effectively been ruled out by the decision of the High Court in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1.

10                  The second argument invoked s 476(1)(g) of the Migration Act, which provided (until its repeal in October 2001) that it was a ground of review

“(g)     that there was no evidence or other material to justify the making of the decision”.

By s 476(4)(b) of the Migration Act, the ground specified in s 476(1)(g) was taken not to have been made out unless the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.

11                  The primary Judge observed that the arguments made by the appellants essentially related to the RRT’s findings of fact.  His Honour accepted the submissions of counsel for the Minister that the RRT’s findings were open on the material before it and that in the circumstances of the case s 476(1)(g) of the Migration Act could have no operation.  While his Honour had no doubt about the genuineness of the grievances felt by the appellant, he felt compelled to dismiss the application.

12                  The appellant’s written submissions repeated the factual claims made by him to the RRT.  He emphasised three factors, which he claimed had been overlooked by the RRT and the primary Judge.  These were:

• his social and political activism over a long period, which had led to his persecution by the Latvian security service;
• the fact that he had been a prominent businessman, whose activities had been widely publicised; and
• the fact that he feared harm, not from the government, but from the Latvian Secret Service.

13                  These arguments, however, amount to a contention that the RRT had made erroneous findings of fact.  The RRT specifically rejected the appellant’s claims that he had been contacted by the Latvian Security Service and that he had been interrogated.  While we, too, do not doubt that the appellant strongly feels that the RRT incorrectly assessed the facts, that is not a basis for concluding that the primary Judge erred in dismissing the application for review.

14                  The appellant next argued that the RRT had accepted country information relating to Latvia and ignored the evidence he had provided.  But the RRT did take into account the appellant’s claims.  It did not accept his evidence on crucial issues as credible.  To the extent the RRT relied on country information, it was entitled to do so.

15                  The appellant, referred, as he did before the primary Judge, to s 430 of the Migration Act.  His Honour correctly rejected that argument on the authority of Minister v Yusuf.

16                  The appellant referred to two decisions in support of his appeal.  In the first, Devarajan v Minister for Immigration & Multicultural Affairs [1999] FCA 796, Moore J held that the RRT had erred in law by failing to recognise that the harm experienced by the applicant could constitute persecution by reason of his political opinions.  That case is of no assistance in relation to the present appeal, having regard to the findings of fact made by the RRT. 

17                  The second case, Singh v Minister for Immigration & Multicultural Affairs [1999] FCA 1234, was a case that turned on the application of s 430(1) of the Migration Act in the light of the authorities at that time.  Those authorities have been overtaken by the decision in Minister v Yusuf.

18                   In her oral submissions on behalf of the appellant, the female appellant submitted that the RRT had overlooked the appellant’s high political profile.  This submission itself overlooks the fact that the RRT addressed the appellant’s “prominence and his access to the media”, but found that, if anything, his high profile “made it more implausible that he would have been targeted as he [had] claim[ed]”.  In any event, this contention raises only a question of fact and does not demonstrate or suggest legal error on the part of the RRT or the primary Judge.

19                  The female appellant’s submissions put forward other criticisms of the RRT’s factual findings.  None of the criticisms goes beyond disagreement with the RRT’s findings.  They do not establish any of the grounds of review available under s 476(1) of the Migration Act, much less those raised before the primary Judge.

20                  Finally, we should record that the female appellant sought to tender a bundle of documents at the hearing of the appeal.  Those documents generally comprised reports relating to conditions in Latvia.  None of this material was before the RRT or the primary Judge.  Indeed, much of it appears to have come into existence after the RRT’s decision.  It is sufficient to say that no proper basis was shown for the admissibility of the material pursuant to s 27 of the Federal Court of Australia Act 1976 (Cth).  Accordingly, the bundle was not admitted into evidence on the appeal.

21                  The appeal must be dismissed, with costs.

Associate:

Dated:              15 May 2002