Svecs v Minister for Immigration & Multicultural Affairs (1999) FCA 1507

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

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 657 OF 1999

BETWEEN: ANATOLIJS SVECS

Applicant

N 659 OF 1999

VLADISLAVS SVECS

Applicant

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Respondent

JUDGE: HELY J

DATE OF ORDER: 2 NOVEMBER 1999

WHERE MADE: 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.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 657 OF 1999

BETWEEN: ANATOLIJS SVECS

Applicant

N 659 OF 1999

VLADISLAVS SVECS

Applicant

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Respondent

JUDGE: HELY J

DATE: 2 NOVEMBER 1999

PLACE: SYDNEY

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.