Svecs v Minister for Immigration & Multicultural Affairs

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:

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. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

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