FEDERAL COURT OF AUSTRALIA BOGUSLAVSKIS v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS [1999] FCA 596 MIGRATION – Refugee Review Tribunal found that the applicant did not have a well founded fear of persecution – whether Tribunal erroneously interpreted test as requiring systematic violation of human rights - whether applicant suffered persecution when penalised for using his native language in his business Migration Act 1958 ss 36(2), 476(1)(e) Ibrahim v Minister for Immigration and Multicultural Affairs (Full Court, unreported, 9 April 1999) considered Minister for Immigration and Multicultural Affairs v Hamad (Full Court, unreported, 26 March 1999) considered Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 considered Mohamed v Minister for Immigration and Multicultural Affairs (1998) 83 FCR 234 considered Murugasu v Minister for Immigration and Ethnic Affairs (Wilcox J, unreported, 28 July 1987) considered Abdalla v Minister for Immigration and Multicultural Affairs (1998) 51 ALD 11 cited Chopra v Minister for Immigration and Multicultural Affairs (Full Court, unreported, 23 April 1999) followed Applicant A and Another v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 followed ERNEST BOGUSLAVSKIS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS NG 1110/98 OF 1998 MATHEWS J 12 MAY 1999 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NG 1110/98 OF 1998 BETWEEN: ERNEST BOGUSLAVSKIS Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGE: MATHEWS J DATE OF ORDER: 12 MAY 1999 WHERE MADE: SYDNEY THE COURT ORDERS THAT: The appeal be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NG 1110/98 OF 1998 BETWEEN: ERNEST BOGUSLAVSKIS Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGE: MATHEWS J DATE: 12 MAY 1999 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The applicant seeks judicial review of a decision of the Refugee Review Tribunal (the Tribunal) which affirmed a decision of the respondent's delegate to refuse the applicant's application for a protection visa. 2 The applicant is a Latvian citizen and an ethnic Russian. He arrived in Australia on 4 October 1997. His wife, Svetlana Barskaia, arrived one month later on 6 November 1997. On 23 October 1997 the applicant lodged an application for a protection visa under the Migration Act 1958 (the Act). On 2 January 1998 the respondent's delegate refused the application. A similar application made by the applicant's wife was rejected a month later. Both of them applied to the Tribunal for review of the relevant decisions. On 15 May 1998 the Tribunal conducted a hearing at which both the applicant and his wife gave evidence through an interpreter. On 8 July 1998 the Tribunal, in separate decisions, affirmed the delegate's decision not to grant a protection visa to the applicant or his wife. 3 Much of the material relied upon by the applicant in support of his application for judicial review is relevant also to his wife's, Ms Barskaia's application. However there were some differences in the material before the Tribunal, and the Tribunal delivered separate decisions in each case, as it was bound to do. The applications to this Court were, by consent, heard together and many of the issues raised are common to both cases. However there are sufficient variations to again require that separate judgments be delivered by this Court. Factual background 4 The applicant, who is an ethnic Russian, was born in Latvia on 30 May 1974. He went to a Russian school in Latvia where he learnt to speak both Russian and Latvian. Later he went to a technical college where he studied to become a technologist. He was unable to obtain work within his expertise and his first job was with a travel agency. He was "made redundant" after about four months. Thereafter he and a business partner, also a Russian, started a motor vehicle business. The applicant said that the business was doing well, as he and his partner were assiduous workers. On one occasion, in the middle of 1996, two people came to the premises and asked in Russian for the price of some tyres. The applicant responded in Russian, thereby infringing a Latvian law which requires that all businesses be conducted in the Latvian language. He was fined $500, which was a very substantial sum in Latvia at that time. 5 Early in 1997 the applicant was, as he described it, "forced" to sell his business. A number of Latvians, he said, had visited him at work and offered to buy his business for a "ridiculously low price", which he refused. Later they returned and told him that if he did not want to have an accident or have his wife raped, he should reconsider his decision. The following day the windows in his car were broken. A map of Russia was left on the front seat with the message "here is my home, here is where I am going to live". The applicant bowed to this pressure and agreed to sell his business, in spite of the inadequate price. 6 The applicant also described an incident in April 1997 when, he said, the police fined him $400 following an unfounded charge that he was driving whilst affected by alcohol and was speeding. 7 The applicant said that he and his wife had received insults and abuse, and had been addressed as "Russian pigs" and "invaders". 8 In February 1997 the applicant and his wife were subjected to a very unpleasant assault. The applicant's description of it, in his statement of 14 October 1997, is as follows: … In the beginning of 1997 (in February) my wife and I were coming home from a friend's place. It was about 10 pm. On our way home a few people of Latvian nationality came up to us. One of them asked for a cigarette. When I had said in Russian that I did not have cigarettes, one of them grabbed my wife and the others started beating me yelling out dirty swearing addressed to Russians in general and to me in particular. As a result, my wife had a serious twist and my nose was bleeding. On the next day, my body was covered in bruises and my eyes were also swollen and bruised. As soon as we got home we called the police and they told us to come in the morning to the nearest police station. In the morning we went to the police station to see Inspector Kalninsh. We wrote a statement. The inspector told us that they will investigate the incident and also said that we should "say thanks for not having been killed" and that "lots of people like you come here just to complain about Latvians". 9 The applicant's wife gave evidence of two further assaults perpetrated against her. Although the applicant himself was not present at either of these assaults, they were clearly relevant to his case if they were perpetrated for a Convention reason. One of these assaults was a street assault at night, not dissimilar to the one described above. The applicant's wife was accompanied by a female friend who sustained a broken arm. The other assault was a sexual assault which was apparently perpetrated upon the applicant's wife by a Latvian official when she went to a public office seeking Latvian citizenship. 10 A further incident occurred in about July 1997. This was not mentioned by the applicant in his original statement, but was described in his evidence before the Tribunal. He said that he and his wife returned to their apartment to find his parents tied up and the flat vandalised. Nothing had been stolen, but swastikas had been painted on the walls. The next day the applicant's father answered a telephone call in the apartment. The caller was insulting and abusive and said "tell your son to prepare a coffin for himself". Shortly afterwards the applicant fled to Germany hoping to seek "political asylum". However after an assault from a German police officer he returned to Latvia where, he said, he suffered a nervous breakdown. It was not long afterwards that he left Latvia and came to Australia. He and his wife were unable to afford two airline tickets so he came first and she followed about one month later. Relevant criteria 11 The criteria for the grant of a protection visa are to be found in s 36(2) of the Act and Subclass 866 in Schedule 2 to the Migration Regulations. Both provisions require that the applicant for a protection visa be a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (the Convention). Article 1 of the Convention defines a "refugee" as any 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 …". 12 The Tribunal found that the applicant failed to meet this criterion. The Tribunal's decision 13 The Tribunal in its decision described the criterion referred to above. It discussed some of the cases relevant to the criterion and then addressed the evidence adduced in this particular case. This consisted of the applicant's visa application, the evidence of the applicant and his wife, and certain articles and publications produced by the applicant. The Tribunal also had access to independent country information which provided considerable details about Latvia's recent history and the problems faced by Russian minorities in the Baltic states. Under the heading of "Findings and Reasons" the Tribunal made findings adverse to the applicant on three issues, which inexorably led to its affirming the delegate's decision. The first finding related to the applicant's employment problems. In this regard the Tribunal referred to the applicant's difficulties with his employment, and to the fact that he had to sell his business at a low price. The Tribunal commented on the absence of independent evidence to suggest that ethnic Russians are treated differently in regard to commercial transactions. After further discussion of the evidence the Tribunal concluded, in relation to the applicant's employment difficulties, that his treatment did not amount to "a serious restriction on his right to earn a livelihood". This finding is not challenged in these proceedings. 14 The Tribunal went on to discuss the fact that the applicant was fined for speaking Russian whilst running his business. It concluded that this was not sufficiently serious to amount to discrimination or persecution. This finding is challenged in these proceedings. 15 Finally the Tribunal dealt with the applicant's claim that he suffered insults and abuse and that he and his wife were physically assaulted. The Tribunal's findings in this regard were central to the issues before this court and it is appropriate to quote them here: The applicant claimed that he suffered insults and abuse from ethnic Latvians, was the victim of assault, and he and his wife were threatened and both suffered physical injury. I accept that there is some discrimination directed at ethnic Russians in Latvia and there is occasional violence directed at Russians. Whether harm or discrimination amounts to persecution in a Convention sense is a question of fact and degree and it suggests a course of systematic conduct aimed at an individual or a group See: McHugh J in Chan Yee Kin v MIEA (1989) 169 CLR 379. There is no independent evidence to suggest that the Latvian Government or ethnic Latvians systematically violate the human rights of the ethnic population. Independent evidence cited above indicates that half of the Latvian police force consist of non‑citizen Latvians. I am satisfied that the applicant would be able to seek the protection of the Latvian police and the Latvian law. I have read and taken into consideration documents submitted by his advisor and viewed a video report. Whilst I accept that some ethnic Russians suffer discrimination and that occasional human rights abuses exist, as detailed by the applicant in various articles and reports he has submitted, I do not accept that all ethnic Russians suffer discrimination or human rights abuses. This applicant was able to commence his own business, obtained citizenship and was able to travel in and out of Latvia relatively freely. Furthermore, independent evidence cited above indicates that the Government generally respected the human rights of its citizens. The Tribunal finds that the evidence before it does not support a finding that if the applicant returns to Latvia, he would face a real chance of discrimination in Latvia amounting to persecution. The Tribunal concludes that the applicant does not face a well‑founded fear of persecution owing to his race or any other Convention related reason. 16 The Tribunal therefore concluded that the applicant is not a person to whom Australia has protection obligations under the Refugees Convention. It accordingly affirmed the delegate's decision not to grant a protection visa. The grounds of review 17 In his application to this Court, the applicant claims that the second and third findings, referred to above, involved errors of law under s 476(1)(e) of the Act. 18 The first, and by far the most significant complaint, relates to what is said to have been the Tribunal's erroneous finding that, in order for there to be persecution under the Convention, there must be "a course of systematic conduct aimed at an individual or a group" and/or a "systematic violation" of human rights. The second ground relates to the Tribunal's finding that the applicant did not suffer persecution when he was penalised for failing to speak Latvian in his business. It is claimed that, had the Tribunal correctly applied the law to its factual findings on this matter, it would have concluded that this amounted to persecution. Did the Tribunal apply an incorrect test? Applicant's submissions 19 In relation to this ground Mr Poynder, who appeared for the applicant, referred to the recent judgment of the Full Federal Court in Ibrahim v Minister for Immigration and Multicultural Affairs (Full Court, unreported, 9 April 1999). In particular Mr Poynder relied upon the following passages (pp 9‑10): In Minister for Immigration & Multicultural Affairs v Hamad (Full Court, unreported, 26 March 1999) the Court has considered the significance of the use of the words "systematic persecution" in certain decisions as they pertain to the test for refugee status. As the Court there noted, that expression appears to have been introduced in the reasons for judgment of Wilcox J in Murugasu v Minister for Immigration & Ethnic Affairs (unreported, 28 July 1987) and its history has been discussed in other cases referred to in Hamad. In the light of the observations in Guo (above), it is important to note that the expression "systematic" may be used in alternative senses. One sense is that of deliberate or premeditated or intended conduct, of acting or carrying out actions with a premeditated intent. The other sense is that of habitual behaviour according to a system, regular or methodical. Where those words have been used to indicate the former sense, there will be no error of law. Where those words have been used to indicate a requirement that it is necessary to show a series of incidents or a course of conduct over time involving persecution, so that persecution will not be shown to exist if there is only an isolated incident, it will demonstrate an error of law on the part of the Tribunal. Hamad is one case where such an error was demonstrated. 20 The Court proceeded to discuss the reasons of the Tribunal in that matter, and continued (pp 10-11): Those reasons indicate, in our judgment, that the Tribunal used the expression "systematic conduct" as requiring a course of conduct demonstrating over time a systematic or methodical attack upon members of the Rahanwein clan for reasons of that clan membership before it would be satisfied that the appellant's claim would be made out. In the light of the decision in Hamad, we find that approach is erroneous. The Tribunal should have determined whether the particular experiences of the appellant were caused by persecution for Convention reasons, and in the light of those findings it should have considered whether at the time of the determination of the application there was a real chance (as that term has been explained in Chan) of the appellant being persecuted by reason of his membership of the Rahanwein clan if he were to return to Somalia. 21 According to Mr Poynder, the Tribunal in this case has made precisely the same error as was identified in Ibrahim and in the earlier case of Minister for Immigration and Multicultural Affairs v Hamad (Full Court, unreported, 26 March 1999). The fact that the Tribunal contrasted "a course of systematic conduct" with "occasional human rights abuses" indicates, Mr Poynder submits, that the Tribunal was using the word "systematic" in its impermissible sense. Respondent's submissions 22 Mr Reilly for the respondent pointed out that the Tribunal's reference to "systematic conduct" derived from the judgment of McHugh J in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 430. Put into context, the Tribunal's use of the word "systematic" was, according to this submission, unexceptionable. Mr Reilley submits that if a group of which an applicant is a member is systematically or regularly persecuted this is relevant both to the existence of a Convention motive for such persecution and also to whether a fear of future persecution by reason of membership of the group is well‑founded. The Tribunal in the present case held that there was no systematic persecution of ethnic Russians in Latvia and that the personal experiences of the applicant did not rise to the level of persecution. There was no error in this finding. Discussion 23 The Tribunal appears to have accepted that the applicant's fear of persecution was genuine. Accordingly, the subjective aspect of the requirement that he have a "well‑founded fear" of persecution was satisfied. It is the objective aspect of the criterion which the Tribunal found was lacking, namely that there was a "real chance" that the applicant would suffer persecution in Latvia. 24 The Convention does not define the term "persecution". Mason J in Chan commented that persecution involves "… some serious punishment or penalty or some significant detriment or disadvantage …" (Chan, p 388). His Honour continued "[o]bviously harm or the threat of harm as part of a course of selective harassment of a person, whether individually or as a member of a group subjected to such harassment by reason of membership of the group, amounts to persecution if done for a Convention reason. The denial of fundamental rights or freedoms otherwise enjoyed by nationals of the country concerned may constitute such harm …" (Chan, p 388). 25 The applicant's primary submission, as I have said, is that the Tribunal required the applicant to establish a "systematic" course of conduct, in the sense of a habitual course of conduct. This, according to the court in Ibrahim, was an erroneous requirement. 26 There have been a number of recent cases in this Court which have discussed the meaning of "systematic persecution" or "a course of systematic conduct". In addition to Ibrahim and Hamad, referred to above, the issue has been discussed in Mohamed v Minister for Immigration and Multicultural Affairs (1998) 83 FCR 234, in Abdalla v Minister for Immigration and Multicultural Affairs (1998) 51 ALD 11 and, most recently, in Chopra v Minister for Immigration and Multicultural Affairs (Full Court, unreported, 23 April 1999). 27 As Hill J observed in Mohamed, different considerations apply in relation to acts of persecution against an individual on the one hand and against a group to which an individual belongs on the other. His Honour in that case referred to McHugh J's observation in Chan that a single act of oppression might suffice to show persecution. His Honour continued (Mohamed, pp 241-242): … Where the fear of persecution is in respect of an applicant's membership of a group, acts of systematic harassment against the group will show the fear to be well founded. There need not be any particular act in fact perpetrated against the individual. Where the fear of persecution is in respect of an individual's political or religious beliefs the resolution of the question whether the fear is well founded will be assisted if it is shown that a course of systematic conduct has been actuated against that individual. But it is not a necessary prerequisite for success in an application. Evidence that individuals with a similar belief suffered discrimination amounting to persecution would likewise justify the conclusion that the individual's fear was well founded even if the individual himself or herself suffers only an isolated act of persecution or none at all. There is no requirement in law that, for an application for refugee status to succeed, the applicant must show a series of co‑ordinated acts directed at him or her which can be said to be not isolated but systematic. 28 A little later his Honour made the following observation (Mohamed, pp 242-243): … Clearly where the issue is whether a particular act is persecution for membership of a particular group evidence that there is a systematic attack on that group will be most relevant to the issue of persecution. However, there are other instances where the Tribunal's approach suggests that, for the applicant to succeed, it would be necessary in law to show the acts of persecution complained of by the applicant are themselves not isolated examples but part of a systematic attack against the applicant. If the issue is framed in terms of whether these acts are part of a systematic attack against the group to which an applicant belongs there can be no quarrel with the use of the word "systematic". 29 In Mohamed the Tribunal had required the applicant to show that he had been a victim of a course of systematic (in the sense of repeated) persecution directed against him personally. This, Hill J found, was an error of law and the Tribunal's finding was set aside. 30 With this background I turn to the Tribunal's findings in this case. The relevant passage is quoted earlier. It was suggested by Mr Poynder that the Tribunal revealed its erroneous reasoning in the passage which reads "it [persecution] suggests a course of systematic conduct aimed at an individual or group". The Tribunal purported to attribute this passage to McHugh J in Chan. However his Honour's comments in that case were a little different. The passage contained in the Tribunal's decision was in fact a direct quote from the judgment of Wilcox J in Murugasu v Minister for Immigration and Ethnic Affairs (Wilcox J, unreported, 28 July 1987). This phrase has since been found to have been "too widely expressed", but not necessarily erroneous. Whether the word "systematic" is erroneously used will depend upon the circumstances (Chopra). The mere use of the word by itself cannot be indicative of error. In this case the Tribunal, earlier in its decision, had commented that in appropriate cases persecution may be indicated by single acts of oppression. It therefore cannot be said that the Tribunal was necessarily in error when it referred to "a course of systematic conduct aimed at an individual or a group". The real question is whether the Tribunal erroneously required the applicant to show that there had been a repeated course of persecutory conduct in order to meet this criterion. 31 An analysis of the Tribunal's decision does not disclose any such error. The Tribunal referred to the insults and abuse which the applicant claimed to have suffered from ethnic Latvians and the acts of assault which had been perpetrated against him and his wife. Although the Tribunal made no specific finding on this matter, it appears to have accepted that these assaults were perpetrated for Convention reasons. As to violence against the group to which the applicant belongs, namely ethnic Russians, the Tribunal found that there was occasional violence directed at them. It also accepted that "… some ethnic Russians suffer discrimination and that occasional human rights abuses exist…". However it also concluded that "[t]here is no independent evidence to suggest that the Latvian Government or ethnic Latvians systematically violate the human rights of the ethnic population." 32 Given the context in which the word "systematically" was used in this passage I can discern no error. Even if the word was used in the so‑called "erroneous" sense of meaning a sustained or routine course of conduct, this is clearly a relevant consideration when related to the group as a whole (Mohamed). 33 The Tribunal's findings on this aspect of the matter might have been more felicitously and transparently expressed. But its meaning is relatively clear. The Tribunal was not satisfied that ethnic Russians as a group were subjected to systematic or regular human rights violations. There was "occasional violence" directed at Russians and "some discrimination". In this context it was clearly open to the Tribunal to find, as it did, that the mere fact of being an ethnic Russian in Latvia was not sufficient to give rise to a well‑founded fear of persecution. Nor was it prepared to find that the assaults committed upon the applicant and his wife were sufficient on their own to give rise to a well‑founded fear of persecution. The Tribunal's reasoning could, as I have already commented, have been more transparently stated. However its purport was, in my view, sufficiently clear to display that, given the beneficial construction which this court is required to apply, no error has been shown. 34 There is in any event a further matter which Mr Reilly points to as providing a complete answer to the applicant's submission that the Tribunal applied an erroneous test as to what constitutes a "well‑founded fear of persecution". For the Tribunal found, on the basis of the independent evidence before it, that the Latvian Government generally respected the human rights of its citizens and that the applicant would be able to seek the protection of the Latvian police and the Latvian law. This finding has not been challenged on appeal, nor could it be. It was clearly open for the Tribunal to reach this conclusion on the basis of the evidence before it. And, as Mr Reilly points out, this finding alone would have been sufficient to deprive the applicant of any entitlement to a protection visa, even if error had otherwise been shown in the Tribunal's reasons. As Brennan CJ said in Applicant A and Another v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 233: The feared "persecution" of which Art 1A(2) speaks exhibits certain qualities. The first of these qualities relates to the source of the persecution. A person ordinarily looks to "the country of his nationality" for protection of his fundamental rights and freedoms but, if "a well‑founded fear of being persecuted" makes a person "unwilling to avail himself of the protection of [the country of his nationality]", that fear must be a fear of persecution by the country of the putative refugee's nationality or persecution which that country is unable or unwilling to prevent. Then, Art 1C(5) provides that a refugee can no longer "continue to refuse to avail himself of the protection of the country of his nationality" if "the circumstances in connexion with which he has been recognized as a refugee have ceased to exist". As the justification for the refugee's not availing himself of the protection of that country is the existence of the relevant "circumstances", those circumstances must have been such that the country of the refugee's nationality was unable or unwilling to prevent their occurrence. Thus the definition of "refugee" must be speaking of a fear of persecution that is official, or officially tolerated or uncontrollable by the authorities of the country of the refugee's nationality (35). 35 In the same case McHugh J made the following observation (Applicant A, pp 257‑258): … The Convention is primarily concerned to protect those racial, religious, national, political and social groups who are singled out and persecuted by or with the tacit acceptance of the government of the country from which they have fled or to which they are unwilling to return. Persecution by private individuals or groups does not by itself fall within the definition of refugee unless the State either encourages or is or appears to be powerless to prevent that private persecution. The object of the Convention is to provide refuge for those groups who, having lost the de jure or de facto protection of their governments, are unwilling to return to the countries of their nationality. 36 For the reasons given above I find that the first ground relied upon by the applicant has not been made out. The language law 37 The second ground can be dealt with shortly. Mr Poynder submits that the denial of the right to speak one's language falls within the definition of "persecution". He cites Article 27 of the International Covenant on Civil and Political Rights which is in the following terms: In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language. 38 In this case, Mr Poynder urges, fining the applicant $500 for failing to speak the state language was a derogation of his human dignity and was a "significant detriment or disadvantage" (per Mason CJ in Chan, p 388). 39 On the other hand, as the respondent points out, the existence of persecution is a matter of fact and degree to be determined by the Tribunal. In this case the applicant was not, within the terms of Article 27, denied the general right to use his own language. It was only in the workplace that the Latvian language was required to be spoken. 40 Mr Reilly pointed to what he described as the "well recognised exception" in refugee law, namely that persecution will not include the application of a legitimate law of general application. In this regard he referred to the judgment of McHugh J in Applicant A (p 258): Conduct will not constitute persecution, however, if it is appropriate and adapted to achieving some legitimate object of the country of the refugee. A legitimate object will ordinarily be an object whose pursuit is required in order to protect or promote the general welfare of the State and its citizens. The enforcement of a generally applicable criminal law does not ordinarily constitute persecution (115). Nor is the enforcement of laws designed to protect the general welfare of the State ordinarily persecutory even though the laws may place additional burdens on the members of a particular race, religion or nationality or social group. Thus, a law providing for the detention of the members of a particular race engaged in a civil war may not amount to persecution even though that law affects only members of that race (116). 41 The application of this exception was not discussed by the Tribunal. In the light of the Tribunal's main finding on the matter it was unnecessary to do so. However this consideration provides a further basis, according to Mr Reilly, for concluding that the Tribunal's finding that the law which required that Latvian be spoken in the workplace did not constitute persecution. 42 This submission is, in my view, well based. However it is unnecessary in the circumstances to have resort to it. For in my opinion the Tribunal was entirely justified in finding that the fining of Latvian citizens, including the applicant, for failing to speak Latvian in the workplace is not "sufficiently serious conduct" to amount to discrimination or persecution. 43 It follows that neither ground relied upon by the applicant can succeed. I can find no error either in the Tribunal's reasoning or in the conclusion which it reached. I therefore dismiss the appeal. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mathews. Associate: Dated: 12 May 1999 Counsel for the Applicant: Mr N Poynder Solicitor for the Applicant: Legal Aid Commission Counsel for the Respondent: Mr T Reilly Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 27 April 1999 Date of Judgment: 12 May 1999