FEDERAL COURT OF AUSTRALIA

Svecs v Minister for Immigration & Multicultural Affairs [1999] FCA 1507

No question of principle

ANATOLIJS SVECS v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 657 OF 1999

VLADISLAVS SVECS v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 659 OF 1999

HELY J

2 NOVEMBER 1999

SYDNEY

THE COURT ORDERS THAT:

1.         The applications are dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     Anatolijs Svecs is the father of Vladislavs Svecs.  Each was an applicant for a protection visa.  The applications were heard by Refugee Review Tribunal (“RRT”) constituted by the same member.  In each case RRT affirmed the decision of the Minister’s delegate not to grant a protection visa.  The applications were refused for substantially the same reasons.

2                     Each applicant lodged an application in this Court for an order of review of the decision of RRT.  The applications were substantially in the same form.  In each case the ground of the application was stated to be as follows:

“I was in a political party in Latvia.  I was fighting for human rights for national minorities.  Because of that I was threatened and obsessed.  Even I was bombed once.  And because I was a member of movement against human rights, Latvian government not going to give me a citizenship ever again.  I can present an additional documents.”

3                     Neither application identified any ground of review available under s 476 of the Migration Act 1958 (Cth) (“the Act”).

4                     Each applicant appeared before me in person, without legal representation and speaking through an interpreter.  Having regard to the limitations on this Court’s jurisdiction, it was necessary for the applicants’ submissions to focus on whether RRT made a reviewable error on one of the grounds specified in s 476 of the Act.

5                     The position of disadvantage in which a person who does not speak the English language, and who is unfamiliar with Australian legal concepts, and is without legal training or assistance, and who is required to address the question of whether RRT made a reviewable error in terms of s 476 of the Act, is obvious.  Whilst I endeavoured to explain to the applicants the limited jurisdiction of this Court, and the task which confronted them, I am by no means confident that they understood what I was attempting to convey to them.  This is not surprising.

6                     Whilst I shall return later in these reasons in a little more detail to the matters put by the applicants, it is fair to say that nothing which was put to me tended to establish that RRT made a reviewable error in terms of s 476 of the Act.  The overall thrust of the applicants’ complaint is that RRT came to a wrong decision on the facts.  Even if that complaint were made good, it would not be sufficient, of itself, to enable this Court to intervene.  For that reason the applications for review must fail.

7                     Anatolijs Svecs is a man of Ukrainian descent who was born in Latvia when it was part of the USSR.  He has lived in Riga, the capital of Latvia, all his life.  In 1991 Latvia became an independent country.  Independence and Latvian nationalism brought adverse consequences to ethnic Russians and other Russian speakers living there.

8                     The applicants claimed to have a well-founded fear of being persecuted for Convention reasons.  The claim was put in two ways:

-                     first, that as Russian speaking Latvian born persons of Ukrainian descent, they were the subject of discriminatory treatment by the Latvian government or its agencies which amounted to persecution;

-                     second, that nationalist groups, or individuals with nationalistic views, had persecuted them, and would continue to persecute them if they returned to Latvia because of their being Russian speaking; because of their high profile opposition to the government’s discriminatory policies, the Latvian authorities had not, and would not, protect the applicants from these groups or individuals.

9                     After independence, a number of laws were passed, the purpose of which was to advance the position of Latvians at the expense of non-Latvians, including ethnic Russians.  Latvian (which the applicants do not speak) was designated the national language.  A restrictive law on citizenship was passed.  670,000 persons (including the applicants) changed from citizens of the Soviet Union to non-citizens resident in Latvia.  Certain rights were denied to non-citizens.  Non-citizens were issued with an alien’s passport.  Non-citizens may not be employed in certain categories.  Tests in the Latvian language and history had to be passed before citizenship could be obtained.

10                  RRT undertook an extensive review of the independent evidence in relation to the human rights situation in Latvia, principally derived from the US State Department’s Country Report for Latvia in 1998.  That report reviewed the position of non-citizens and the practises to which they were subject.  The report concluded:

“The National Human Rights Office found most of these practices to be consistent with international standards and practices that allow a state to limit government employment, political participation and some property rights to those persons who are citizens.”

11                  The independent information also indicated that the Latvian government generally respected human rights (including a right to free speech) and did provide documents, including the alien’s passport, which allowed permanent residence rights as well as the right to leave and re-enter Latvia.

12                  RRT accepted that the applicants, and other non-citizens, may have been discriminated against in certain matters, including the receipt of a passport marked “Alien’s Passport”.  RRT concluded:

“However, the Applicant himself has not been singled out for this discriminatory treatment: it flowed from post-independence laws applicable to all those in Latvia.  The post-independence laws were specifically designed to favour ethnic Latvians and in this regard they can be seen to be either discriminatory or examples of affirmative action, depending on one’s viewpoint.  In any event, the discrimination involved is not persecutory, as can be seen from reading the independent evidence above.”

RRT was not satisfied that a fear of persecution based on general grounds of being of Ukrainian descent, or a Russian-speaker, or any other non-Lettish citizen, is well founded.

13                  The applicants’ submissions did not identify any error in the approach adopted by RRT, or in the conclusion to which it came.  Submissions were put that not all of the documents before RRT were included in the bundle of relevant documents, particularly the law on citizenship.  In fact this and certain others of the supposedly “missing” documents were located in the bundle during the course of the hearing.  If there were any other documents missing from the bundle, it was not explained how this was indicative of error on the part of RRT.

14                  The applicants repeated their objections to being treated as non-citizens, and asserted that the reality of the situation was that they would not achieve citizenship.  As non-citizens, they are stateless people.  If Australia were to deport the applicants, Latvia might not issue them with a visa for the purposes of re-entry.  In Latvia there are two committees on human rights – the Latvian Human Rights Committee and a State Committee, apparently styled the National Human Rights Office, which is said to produce biased reports which cover up complaints of mistreatment by the Russian speaking population of Latvia.

15                  These submissions do not expose any error in RRT’s conclusion that the applicants’ positions as non-citizens and the discriminatory treatment to which they are exposed in that respect, does not result in persecution.  Whether or not the applicants will be permitted to re-enter Latvia does not bear upon whether Australia owes them protection obligations under the Convention.  In any event, both applicants have valid alien’s passports.  There was no evidence before RRT to the effect that they would not be able to return to Latvia.  The independent country information suggests that the opposite is the case.  The comments about the Human Rights Committees in Latvia do not rise above the level of assertion.  In any event, they are based upon a misconception as to the sources on which RRT relied.  RRT relied upon material which the applicant produced from the Latvian Human Rights Committee, composed of Russian Latvians, and the US State Department material earlier referred to.

16                  Reliance was also placed upon a statement in a booklet produced by the Latvian Human Rights Committee styled “National Minorities in Latvia and Human Rights”.  The booklet attributes to P. Lace, said to be the Vice-President of the party “TB/LNNK” in the Latvian parliament, a statement that “all non-citizens will have it necessary to leave Latvia before 2002”.  This booklet was before RRT.  I do not know whether RRT’s attention was specifically drawn to this statement.  The statement is said to establish that Latvia is not a democratic state.  Taken at face value, and at its highest, the statement might call into question, or contradict, RRT’s finding that the rights of registered permanent non-citizens are equivalent to a citizen’s in most essential respects.  But the fact that there was some material before RRT which pointed in a different direction to that of other material on which RRT relied, is not indicative of error on the part of RRT.

Persecution by Nationalists

17                  Anatolijs Svecs claimed that in 1992 or 1993 four armed men came to his apartment in search of him but were thwarted by the security door.  He called the police.  The applicant wrote seven letters of protest to the Interior Minister and had a personal meeting with the Prime Minister about the incident.

18                  RRT’s finding in relation to this incident was as follows:

“On the occasion that the armed men came to his door, he phoned the local police who appear to have responded in a timely fashion.  He was able to pursue his complaints (that the armed men were, in fact, police) right to the highest authorities (see page 9).  The fact that the Applicant did not achieve his personally desired outcome is not equivalent to the authorities not doing anything."

19                  On 10 January 1997 a bomb exploded in the applicant’s block of flats in what the applicant considered to be an attack upon him.  He informed the police of his views, although he had no faith in them doing anything.  A letter from the Commander of the State Police dated 5 May 1999 was before RRT which stated that a criminal proceeding had been initiated in relation to this incident and the matter was under investigation.

20                  RRT concluded that the lack of the applicant’s desired outcome (ie a finding that he was the intended victim of the bomb attack) may be explained by the possession of other data by the police which does not support the applicant’s theory.  The matter was still under investigation, and the lack of the applicant’s desired outcome is not necessarily indicative of the police’s refusal or failure to protect him.

21                  Anatolijs Svecs also claimed to be a high profile human rights campaigner, having published opinion pieces in Russian language press in Latvia and having undertaken a range of correspondence with Latvian and foreign governmental authorities about perceived injustices meted out by the Latvian government to Russian-speaking people in Latvia.

22                  RRT noted that he had never been questioned or detained by the police in connection with his protest activities.  He also claimed that his political profile and expressions of opinion had attracted the hostility of ultra nationalists from which the Latvian authorities are unable to protect him.  Of this claim RRT said:

“The Tribunal does not find that the Latvian authorities have shown themselves unwilling or unable to protect the applicant.”

23                  Further, RRT was not satisfied that Anatolijs Svecs would face persecution because of his anti-Soviet and anti-KGB background.  RRT concluded that, if anything, this would be beneficial rather than detrimental to the applicant.

24                  In relation to the specific claims made by Vladislavs Svecs, RRT accepted that he has been twice assaulted, and that these assaults may have occurred because he was a non-Latvian.  Action was taken by the police in relation to both instances of assault.  RRT concluded that these are random incidents perpetrated by individuals who believe they are nationalists.  RRT was not satisfied that the authorities condone the incidents in any way, or that they show themselves to be unable or unwilling to protect the Russian-speaking residents.

25                  RRT also rejected the son’s claim that he would face persecution as the son of a political activist; this followed from its conclusion that the father would not face persecution as a political activist.

26                  I am unable to detect any error in the approach which RRT adopted to the second basis on which the applicants claimed refugee status.  The issue is not whether the authorities can guarantee that the applicants will not suffer harm for a Convention reason, but whether, in the language of the Full Court in A, B & C v Minister for Immigration & Multicultural Affairs [1999] FCA 116 at par 42, Latvia has “effective judicial and law enforcement agencies, is governed by the rule of law and has an infrastructure of laws designed to protect its nationals against harm of the sort said to be feared” by the applicants.  RRT found against the applicants on this issue.  Its finding is one of fact, which cannot be impeached except in the circumstances referred to in s 476 of the Act.

27                  The applicants’ submissions on this aspect of the matter did not rise above a challenge to RRT’s factual findings which I have summarised above.  In particular, it was submitted that RRT should have found that the applicant’s political activities and public expressions of opinion exposed them to persecution at the hands of nationalists against which the authorities are unable or unwilling to protect them.  RRT should have drawn a like conclusion on the basis of the physical harm suffered by each applicant in the incidents recounted above.  It is a matter for RRT to decide whether it accepted the applicants’ contentions in this respect.  The fact that it did not do so is not indicative of reviewable error.

28                  Anatolijs Svecs submitted that RRT tried to paint him as a communist.  It did no such thing.  As indicated in par 23 above, RRT proceeded on the basis that this applicant was anti-communist.

29                  The applicants have failed to show any error on the part of RRT.  Given the disadvantages to which the applicants were subject which I referred to at the commencement of these reasons, I have considered whether the materials indicate reviewable error on the part of RRT on grounds other than those advanced by the applicants.  In my opinion they do not.

30                  The applications are dismissed with costs.

Associate:

Dated:  2 November 1999