NAHC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1539

FEDERAL COURT OF AUSTRALIA

NAHC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1539

NAHC v MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS N 1594 of 2003 LINDGREN J 15 DECEMBER 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1594 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: NAHC

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: LINDGREN J

DATE OF ORDER: 15 DECEMBER 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs of the appeal. 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 1594 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: NAHC

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: LINDGREN J

DATE: 15 DECEMBER 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The appellant appeals from a judgment of the Federal Magistrates Court of Australia ('FMCA') delivered on 3 October 2003. (The Chief Justice considers it appropriate that the appellate jurisdiction in relation to the appeal be exercised by a single judge: see Federal Court of Australia Act 1976 (Cth) subs 25(1A).) The FMCA dismissed the appellant's application for review of a decision of the Refugees Review Tribunal made on 18 November 2002 and handed down on 12 December 2002. By that decision the Tribunal affirmed a decision of a delegate of the respondent (respectively, 'the Delegate' and 'the Minister') not to grant a protection visa to the appellant. 2 The appellant applied to the FMCA under s 39B of the Judiciary Act 1903 (Cth). The learned Federal Magistrate concluded that it was not shown that the Tribunal had committed a jurisdictional error: cf Plaintiff S157 of 2002 v Commonwealth of Australia (2003) 195 ALR 24. For the reasons which follow, the Federal Magistrate did not err in this respect. 3 The appellant entered Australia on 9 April 1998 and lodged an application for a protection visa on 24 January 2001. He was formerly resident in Latvia but claimed to be stateless on the basis that he was a non-citizen resident in Latvia. The Tribunal was satisfied that Latvia was the appellant's country of habitual residence and that he had enjoyed there many of the rights of a citizen, including the right to return and reside there. Accordingly, it assessed his claim to be a refugee as against that country. 4 When the appellant came to Australia he was accompanied by his sister and their male friend. The sister and the friend later became engaged to be married. All three had student visas and all three lodged applications for protection visas. The Tribunal, identically constituted, heard all three applications for review, all being based generally on the same claims and documentary evidence. 5 The appellant chose to have his application to the Tribunal heard in conjunction with that of his sister, but the application of the fiancé, who had lodged his protection visa application some seven months after the lodgement of those of the appellant and his sister, was heard some three weeks after theirs were heard. No decision was made by the Tribunal on the applications of the appellant and his sister until the application of the friend was heard – the friend submitted material (on behalf of the appellant and his sister) which was to assist the Tribunal in the consideration of all three applications. 6 The factual circumstances are somewhat unusual in that the appellant's claim was not based on an allegation that he had suffered persecution in Latvia prior to leaving that country. Rather, his claim was based on experiences which allegedly befell his mother in Latvia while the appellant himself was living in Australia. The appellant's claim is that he has a well-founded fear of being persecuted in Latvia on the ground of his Russian ethnicity, and, in support of that claim, he relies on what he contends was persecution of his mother for that reason. 7 The appellant's mother, travelling on a Latvian passport, was in Australia for some 20 days between 8 and 28 December 1997, for some 23 days between 26 November and 19 December 1998, for some five and a half months from 26 March 2001 to 14 September 2001, and from 7 November 2001 onwards. 8 It will be recalled that the appellant came to Australia on his student visa in April 1998. During his mother's next visit to Australia after that date, between 26 November and 19 December 1998, she became engaged to be married to an Australian citizen. That person travelled to Latvia to see her in February 1999, and assisted her to submit an application to migrate to Australia. According to the Tribunal's reasons for decision, the mother asked the appellant and his sister not to return to Latvia in November 1999, when their student visas were due to expire. 9 The appellant's claims before the Tribunal proceeded along the following lines. The appellant's mother was planning to move to Australia permanently to be with her future husband and she packed up her belongings in a container which she despatched. However, the container was intercepted in Germany and was returned to Latvia in March 2000. The Latvian authorities accused the mother of attempting to export national and historical artefacts contrary to law, and brought a criminal proceeding against her. The criminal proceeding attracted widespread publicity in Latvia, with accusations that 'aliens' (notably ethnic Russians) do not care about Latvia's heritage and readily betray it. The criminal proceeding was concluded in August 2000 and the mother was acquitted of the charges against her. Nonetheless, the appellant claimed that 'the campaign of hatred and falsehood went on', and that his mother received 'numerous threats, intimidation and even physical assaults'. He claimed that his father left Latvia as a result of the publicity. 10 The Tribunal considered the appellant's claims and independent country information about Latvia. As well, it took into account certain articles from the Latvian-language press and an article from the Russian-language press. The Tribunal said that the former did not bear out the claim that Latvians had reviled the appellant's mother as a person who had attempted to remove Latvian art objects illegally. The Tribunal stated: 'The applicant's mother is not demonised and Latvians are not invited to find that Russians try and smuggle artefacts out of Latvia because they are disrespectful of Latvian heritage.' The article in the Russian language newspaper was apparently written in late March or early April 2000. Although, this article was not supportive of the appellant's mother in the way in which the others were, it did not imply that the mother was desecrating the Latvian heritage because she was a Russian. The Tribunal continued: 'Nor would the article attract the wrath of ultra-nationalist Latvians towards the applicant's mother because the article is in Russian, clearly written for the Russophone population of Latvia. It is implausible that Russian language newspapers in Latvia would seek to incite racial hatred (for reason of their Russian ethnicity) against Russians in Latvia.' 11 The Tribunal noted that in any event the mother had won her court case. 12 A further remarkable aspect of the factual circumstances is that subsequently the mother returned to Latvia voluntarily, where she launched a proceeding against the Customs Department. At that time she also spoke voluntarily to the press (allowing herself and her goods to be photographed). The Tribunal said that these facts showed that she was not fearful of the Latvian authorities in general. 13 The Tribunal acknowledged that individual Latvians may have demonstrated animosity towards the appellant's mother. Indeed, the Tribunal stated: 'There was a considerable amount of anti-Russian feeling at the time of independence and clearly some still exists.' The Tribunal observed, however, that the Latvian State has taken steps to distance itself from any such racial vilification. 14 The Tribunal declared itself satisfied on the evidence: * that there was not a concerted press campaign to vilify the appellant's mother for reason of her ethnicity; * that any anti-Russian sentiment directed at the mother was on an individual and random basis, was not State-sanctioned, and did not amount to persecution; * that the appellant's mother was able to access the law like any other citizen; and * that the Latvian State was neither unwilling nor unable to protect her. 15 The grounds of appeal as set out in the notice of appeal, without editorial correction by me, are as follows: '2.1 The Tribunal has found that the persecution was on an individual and random basis and that it was not "state-sanctioned". Given these two findings the Tribunal has determined that the harm the applicant were or will be subjected to did not amount to persecution. 2.2 The single judge of the Court erred in its conclusion that the Tribunal had not erred in law by claiming that harm inflicted for a Convention reason could not constitute persecution within the meaning of the Convention unless inflicted regularly in a co-ordination pattern. 2.3 The single judge did not give weight to the fact that the Tribunal had misinterpreted the appellant's whole case by stating that the persecution was not state-sanctioned. It is to be noted that the Tribunal's previous finding was that the appellant's mother had been targeted by the Customs officials and the police officers, e.g. by state authorities.' 16 In relation to the first ground of appeal, both the Tribunal and the FMCA referred to s 91R of the Act which provided that for the purposes of the application of the Act and the Migration Regulations to a particular person, Article 1A(2) of the Convention Relating to the Status of Refugees, does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless, inter alia, the persecution involves, 'systematic and discriminatory conduct'. 17 The Tribunal found that there was no more than a remote chance that 'the applicant will be harmed in the reasonably foreseeable future for reason of his association with his mother'. This finding was fatal to his claim. 18 Even in relation to the mother, there was no legal error in the Tribunal's conclusion that ethnic Russians generally were not persecuted in Latvia and that any individual acts of harassment which the mother may have suffered there were random rather than systematic. 19 There is no substance in the first ground of appeal. 20 In relation to the second ground of appeal, much that I have already said is applicable. The Tribunal was entitled to reach the conclusion which it did on the basis that any conduct directed against the appellant's mother was on an individual and random basis and did not amount to persecution. 21 The third ground of appeal, like the first, raises the question of whether conduct directed against the mother was State-sanctioned. Against the view that it was, was country information before the Tribunal and the fact that the mother accessed the Latvian court system. As well, of course, there is the fact that she was acquitted in the criminal proceeding.