SZIUV v Minister for Immigration and Multicultural Affairs [2006] FCA 1660

FEDERAL COURT OF AUSTRALIA

SZIUV v Minister for Immigration and Multicultural Affairs [2006] FCA 1660 SZIUV, SZIUW AND SZIUX v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL NSD1590 OF 2006

JESSUP J

22 NOVEMBER 2006

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD1590 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZIUV

First Appellant

SZIUW

Second Appellant

SZIUX

Third Appellant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: JESSUP J DATE OF ORDER: 22 NOVEMBER 2006

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeals be dismissed. 2. The first and second appellants pay the first respondent's 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 NSD1590 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZIUV

First Appellant

SZIUW

Second Appellant

SZIUX

Third Appellant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: JESSUP J

DATE: 22 NOVEMBER 2006

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 These are appeals from a judgment of the Federal Magistrates Court given on 4 August 2006 in which it disposed of applications made on 9 May 2006 under the jurisdiction invested in that court by s 476 of the Migration Act 1958 (Cth) ("the Act"). The appellants sought judicial review of a decision of the Refugee Review Tribunal made on 30 March 2006, and handed down on 20 April 2006, in which they were denied protection visas pursuant to s 36 of the Act. 2 Although there are three appellants in this appeal, each of whom was an applicant before the Magistrates Court and a party with respect to whom the Tribunal exercised jurisdiction, only the first appellant has appeared on his appeal today. He has made it clear that it is he who claims to fear persecution sufficient to bring him within the definition of a refugee in the Refugees Convention, and that the other appellants, his wife and his daughter, are claimed to come within the circumstances referred to in s 36(2)(b) of the Act. 3 Broadly, the case which the first appellant ("the appellant") advanced before the Tribunal was that he feared persecution should he return to the country of his nationality, Latvia, substantially because he is of Russian ethnicity and a Russian speaker. He claimed to have suffered various acts of persecution in Latvia in the early 1990s and to have been assaulted in 1995 by a group which the Tribunal described as extremist Latvian nationalists, but which he told me today were uniformed and armed men who, he believed, were connected with the state. The Tribunal accepted that the appellant had been assaulted in 1995 and generally that he had experienced the episodes upon which his claim was based in the early 1990s before he came to Australia in 1996. It also accepted that he had an actual and genuine fear of persecution should he return to Latvia. 4 The critical question for the Tribunal however, was whether that fear was well-founded, and it was at this point that it decided the matter against the appellant. The substantial basis of the Tribunal's findings in this regard was that the situation in Latvia today is quite different from that which obtained when the appellant was last there, and that the previous antipathy which was expressed towards people of Russian background is now, as the Tribunal said, expressed largely through political avenues. 5 The Tribunal said that the evidence did not support the view that the problem was so widespread or serious that merely being a person of Russian background in Latvia was sufficient to give rise to a real chance of serious harm. The Tribunal made a finding of fact that the appellant had no well-founded fear of persecution by reason of his Russian background. The Tribunal also took into account the circumstance that the appellant's parents who, like him, are Russian-speaking people of a Russian background, and who continue to live in Latvia, have not informed him of any harm, or of any threats of harm, being directed at them because of that background or for any other reason. Finally, the Tribunal held that the extremist groups which were previously active in Latvia are much less so nowadays and that Latvian law in a contemporary setting has been much more successful in dealing with extremist criminal activity. 6 The Tribunal also considered whether the circumstances would be any different if the appellant returned to Latvia and there engaged in the expression of views in favour of equal treatment of people of Russian background in that country. The Tribunal relied upon independent country evidence for the finding that, even if he were to engage in public expression of views of that kind, the appellant would have no well-founded fear of suffering harm on that account. I should read a section from the Tribunal's decision which is relevant in this regard: Despite the evidence that racist and nationalist views are being expressed by a few main stream politicians, it is apparent from the independent evidence above that, since his arrival in Australia in 1996, an established and open debate on such issues has evolved in Latvia. That is evidenced in part by the establishment of a pro-Russian group which is legal and about which there are no reports of threats of harm to members. More broadly it is illustrated by the evidence in the most recent US State Department report (2006) that the law provides for freedom of speech and of the press, and during 2005 the government generally respected these rights in practice, that the independent media were active and expressed a wide variety of views without restriction, that numerous demonstrations took place peacefully and without government interference last year, and that the law provides for freedom of association, the government generally respecting this right in practice. I accept that evidence as reliable. Substantially for reasons of that kind, the Tribunal rejected the appellant's application and affirmed the decision of the delegate of the respondent Minister to refuse a protection visa. 7 In his amended application for judicial review in the Federal Magistrates Court the appellant relied upon a number of grounds. He pointed first to the Tribunal's finding that it was unable to make a finding that those who assailed him in 1995 were sponsored or backed in some way by the government at the time. He alleged that that finding illustrated a fundamental misunderstanding on the part of the Tribunal as to the nature of the Convention. He said that it was known that the persecution does not need to be the product of government policy and that it was enough to prove that the authorities were unable or unwilling to protect him. That is to say, the case which he advanced before the Federal Magistrate in this respect was that the Tribunal had misdirected itself in taking the view that the question was confined to whether the appellant's assailants were sponsored or backed by the government. 8 In that application the appellant's next point was to refer to the Tribunal's finding that, although the appellant had a genuine and strong fear, the antipathy towards Russian-background people in Latvia was now expressed largely through political avenues, and that the evidence did not support the view that the problem was so widespread or serious that merely being a person of Russian background was sufficient to give rise to a real chance of serious harm. The appellant pointed out that, as a result of having been assaulted in 1995 because of his race and political opinion, he had suffered post traumatic stress disorder. He made the point that this put him apart from the generality of Russian-speaking people in Latvia, and that the Tribunal should not have treated him as no more than part of that mainstream population. 9 The appellant also based his application upon the circumstance that the harm which he had suffered included mental harm, and he appeared to say that the Tribunal did not recognise that the concept of harm in the legislation extended to mental harm. He contended that the Tribunal had failed to take into account the serious mental harm from which he suffered. 10 In providing the above summary of the appellant's case before the Federal Magistrate, I have relied upon the grounds set out in his amended application. I do not have the benefit of a transcript before the Federal Magistrate, and the appeal materials before me do not contain any outline of submissions or contentions or similar document at that level. 11 In his reasons for judgment published on 4 August 2006, the Federal Magistrate provided what I would describe with respect as a careful and comprehensive setting out of the appellant's circumstances and claims. The conclusion which he reached was that the Tribunal had not exceeded, or failed to utilise, its statutory jurisdiction. When the nature of the grounds upon which the appellant then relied is appreciated, it is unsurprising that the Federal Magistrate should have reached this conclusion. 12 In his appeal to this court, the appellant has relied upon three grounds which only by a very elastic reading could be seen to have anything in common with the grounds upon which he relied before the Federal Magistrate. The three grounds upon which he now relies are as follows: 1. From the conduct of the Tribunal and from the terms of its reasons, the decision was affected by apprehended bias. 2. The Tribunal misconceived the definition of harm set out in s 91 of the Act. 3. The Tribunal ignored relevant information and took into account irrelevant information (information provided by the appellant during the hearing). 13 Before turning to the way in which the appellant developed his case today, I shall say something about those three grounds. Although there is, of course, a distinction between actual bias and apprehended bias, nonetheless to raise an allegation of either kind is a serious matter which, in my view, ought not to be done save upon a proper basis and in a conscientious way. There was no suggestion before the Federal Magistrate that the Tribunal had been biased. Nothing which the appellant has put to me today would provide the slightest support for a case of apprehended bias. When he first made out his case before me today, the appellant said nothing about this question of bias. Indeed, he said nothing about the grounds in his notice of appeal at all. I prompted him to turn his mind to the grounds in his notice, at which stage he addressed me on the matter of bias. 14 As best I can understand the point which the appellant makes, it is that the Tribunal had decided beforehand the way in which it would dispose of his application because, after a lengthy discussion which it had with him, it effectively agreed with everything he had said, and yet decided the case against him on the basis of what the Tribunal referred to as independent country information, particularly the US State Department materials referred to above. He said that if he had been given an opportunity to comment on those materials, he would have done so. 15 Taking those submissions at face value, it would seem at most that the appellant is advancing a case of denial of procedural fairness, and although the appellant is not, I presume, legally qualified, I think that the description of a case of this nature as one involving bias is a particularly unhappy expression. However, in the circumstances, I think I ought to deal with the point which the appellant makes on its merits, that is to say, I ought to decide whether he has made out a case of denial of procedural fairness on the basis that the Tribunal had reference to a deal of independent country information upon which he had not had the opportunity of commenting. 16 Mr Reilly, who represented the respondent Minister today, made two submissions about this. The first was that there is no evidence upon which I would be entitled to conclude that the appellant had not been fairly appraised by the Tribunal either of its intention to have regard to material of this nature or, indeed, of the general terms of the particular material to which it did have regard. Mr Reilly relied in this respect upon the judgment of the Full Court in NAOA v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 241, [21]. Mr Reilly's second point was that no procedural fairness ground had been included in the application to the Federal Magistrate or, it seems, argued before or dealt with by him and that, in the circumstances, it should not be permitted to be relied upon on appeal. I think there is substance in both of these responses given by Mr Reilly. 17 What the appellant in substance seeks to do is to conduct this appeal on a different basis from that upon which he conducted his application before the Federal Magistrate. One question which must be considered in that context is whether the appellant has provided a satisfactory explanation for not raising the point before the Federal Magistrate. When this was raised with him today, he said that the material from the US State Department had not come to his attention until the hearing before the Federal Magistrate, by which time it was too late for him to make it part of his case. When I drew his attention to the passage in the Tribunal's judgment, which I have quoted above, he accepted that he must necessarily have been aware of the Tribunal's reliance upon that material at the time when he received its decision, which was some months before the proceedings before the Federal Magistrate. I do not, therefore, accept that there is any legitimate explanation for why this procedural fairness point was not advanced before the Federal Magistrate. 18 Another consideration of importance on an application such as this is whether the point now sought to be argued has got a reasonable prospect of success. On the evidence which I now have before me, it is hard to see that I could make a finding in the appellant's favour in that respect. If he had wanted me seriously to consider his case under this heading, he ought to have taken the step which he has had ample time to take, namely, provide evidence of what in fact occurred before the Tribunal so that I would be able to make an assessment as to whether there was a reasonable case, as a matter of practical reality rather than of theoretical prospect, that the Tribunal had denied him procedural fairness. 19 A third consideration is the efficient utilisation of judicial resources. It seems self-evident that if any serious attention were to be given to this ground, this case could not be completed today: it would have to be heard again at another time. That would probably be next year, and generally the result would tend to be an inefficient utilisation of this court's time. Allied to this is the very unsatisfactory and almost offhand way in which the matter has been raised before the court. It was not part of the appellant's Notice of Appeal and even if I were prepared to read his reference to bias in the way for which contends, which I am, the fact remains that the substance of the procedural fairness point was not part of the outline of submissions which he filed on 17 November 2006. 20 On the other hand, I accept that this is a matter of considerable importance to the appellant, and that the consequences of not permitting him to rely upon a point which may be of some significance might be serious. I accept that the point could be of significance because, as Mr Reilly made clear, the terms of s 422B of the Act do not apply to this appeal because the appellant's application to the Tribunal was made many years ago. 21 In the result, I am not persuaded that the balance of circumstances favours the course of permitting the appellant to rely upon what is essentially a procedural fairness ground. I do not believe it would be satisfactory to allow the appellant to depart from the way in which he has conducted the case before the Federal Magistrate, and indeed from the way in which he conducted the case at all times until, after having made what appeared to be the whole of his submission today, I prompted him to inform me what he meant by the reference to bias in the Notice of Appeal. 22 Turning to the reference to s 91 of the Act in the Notice of Appeal, I take it, and Mr Reilly took it, that this was an intended reference to s 91R of the Act, which provides what is effectively a definition of persecution for the purposes of s 36, and to subs (2) in particular, which gives further definition to the concept of serious harm. When asked to make submissions about this aspect, the appellant said that he provided a lot of information to the Tribunal about the harm which he had suffered in the early 1990s and particularly in 1995. He referred to a broken hand, to the insertion of metal components in order to force his wounds to heal, and to damage to his hearing in his left ear. He said that he explained to the Tribunal that when harm was inflicted on him in Latvia in the ways to which he referred, he had to hide and he had to change his place of residence. He told me that all of the relevant documents had been provided to the Tribunal and that they had enough material to make a judgment that he had suffered from serious harm within the meaning of the Act. 23 I accept all of those things, as did the Tribunal. The Tribunal did find that he had suffered from serious harm, and I am sure that the Tribunal were not without sympathy for him in that regard. The difficulty is that those matters are purely factual matters entirely within the Tribunal's jurisdiction, and they do not in any event reflect the basis upon which the Tribunal decided the case, which was not to contradict what the appellant said about the harm which had befallen him, but rather to deal with the present-day security situation with respect to Russian ethnic people in Latvia. 24 The third ground in the appellant's Notice of Appeal broadly reflects the way in which he conducted his case in court today, and the outline of submissions which he provided some days ago. In essence, his case has two elements. The first element is that the Tribunal was in error in not focusing upon his own individual circumstances, and in preferring to rely upon general country information which dealt not with the appellant as a person but with the broad population of Russian-speaking people in Latvia. Given an appropriate heading as a matter of administrative law, it seems that in this respect the appellant is saying that the Tribunal based its decision upon circumstances which were irrelevant to the question which it had to address, namely, whether he as an individual had a well-founded fear of a Convention kind. The difficulty with this submission is that the Tribunal did pay considerable attention to the individual circumstances of the appellant, and it accepted what he said about his unhappy experiences. The Tribunal's decision essentially came down to its judgment, made on an objective basis, as to whether the fear which the fear appellant now has is well-founded. 25 I can understand that the appellant feels a sense of frustration that the Tribunal should proceed in a broad and objective way by reference to Latvian society as a whole, but given the nature of the claims which the appellant was making it seems inevitable that it should have done so. This is an expert tribunal which is dealing with claims for refugee status by people from different parts of the world every day of the week. The Tribunal necessarily, it seems to me, has the expertise and the experience to assess how well-founded particular fears are, such as those held by the appellant in this case. Manifestly the kind of general information which the Tribunal took into account was relevant to the question which it had to consider. In fact, if I had to express a view about it, I would say that it was central to the question which it had to consider. 26 The second aspect of the appellant's case had a similar flavour but slightly different content. He put it to me that once the Tribunal had a starting point that he himself had been assaulted in the 1990s it ought not to have simply assumed by reference to general information of the kind to which I referred that the environment of fear and harm to which he was subject at that time will by now have been removed. This is really a different way of saying the same thing. If anything it is perhaps more concerned with an attempt to persuade me that I should exercise a merits review with respect to the matters of fact which the Tribunal decided. I am in no position to do that. Looking broadly at what the Tribunal did it is clear that it acted wholly within jurisdiction. 27 In a number of respects the submissions made to me today by the appellant were concerned with questions of fact which are not for this court to decide. I mention only one of them. The appellant referred to the Tribunal's statement that there was insufficient evidence to enable it to make a finding that those who assailed him in 1995 were sponsored or backed in some way by the government at that time. The appellant submitted that those who assaulted him were not extreme nationalists or some private group of hoodlums or terrorists, but rather were a group of men in uniform armed and systematically organised. The appellant said that he believed that these people, if not part of the formal structure of the security forces of the state as such, were at least sponsored by the state as they would have to be to find themselves armed and in uniform. 28 It is not this court's function to reinvestigate questions of fact which have been considered by the Tribunal. The only other thing that I should say about that is that whatever may have been the connections of those people who harmed him, the Tribunal has found that the situation in Latvia is quite different today, and it does seem to me, with respect to the appellant, that, even if it had been the case that those men were connected in some way with the state at the time, that circumstance would be quite irrelevant to the outcome at which the Tribunal arrived. 29 In what I have said so far I have made no reference to the first submission made by Mr Reilly before me today, which was that is that the proceedings are an appeal from another court which itself dealt with the allegation that the Tribunal had exceeded, or failed to exercise, its jurisdiction. Mr Reilly submitted, and I accept, that the first task I would have as a court of appeal is to consider whether there was any error made by the Federal Magistrates Court. Mr Reilly rightly pointed out that the appellant made no attempt to demonstrate error on the part of the Federal Magistrate. 30 In the circumstances of this case I have not been too fastidious as against the appellant in that regard because of the particular way in which the Federal Magistrate approached his task. His reasons are not so much a legal treatment of particular points as a broad description of the appellant's claims and the way in which the appellant considered that the Tribunal had gone wrong. I was prepared to let the appellant in effect run his full case again before me with a view to demonstrating that I should reach conclusions different from those of the Federal Magistrate and possibly thereby identify some source of error on his part. However, having heard the appellant's case in full, having read his outline and having considered his grounds, I am quite unpersuaded that the Federal Magistrate made any error or that there is otherwise any basis upon which I should allow the appeal. 31 The order I propose to make is that the appeals be dismissed.