SZBLX v Minister for Immigration and Multicultural and Indigenous Affairs

Background 4 The following is a summary of the appellant's claims about his experiences in Latvia, drawn primarily from the Tribunal's reasons for decision. 5 In October 1998, the appellant commenced a relationship with an African male, and was humiliated and abused because of this "unusual" relationship. In the spring of 1999, he and his friend were beaten by ethnic Latvians. He made a written complaint to the police. However, no case was instigated due to lack of evidence. 6 Sometime after February 2000, the appellant and his friend were at a nightclub where a fight occurred between ethnic and non-ethnic Latvians. He was arrested with his friend by the police, called a "Russian piggy poofter" and beaten. He was left unconscious outside the Police building in freezing conditions and as a result he suffered frostbite. He made a complaint accusing the police of beating him. He received threatening letters. The police informed him that two witnesses had given information that the appellant and his friend had started the fight, assaulted the police, were arrested and subsequently released, and that the people they had originally assaulted had then beaten them in retaliation. The case was then closed, however the threatening letters continued.

The Tribunal's reasons for decision 7 In relation to the appellant's claims concerning his sexuality, the Tribunal noted that, like other countries, there was a level of societal discrimination against homosexuals, but it observed the Latvian government did not discriminate against homosexuals nor did it condone such discrimination. The Tribunal noted that consensual sexual activity between men has been decriminalised since 1992. It further noted that there had been a rapid emergence of homosexual advocacy groups, and that, while gays and lesbians continue to fear harassment in the workplace and social censure, according to gay activists, the official treatment of homosexuals was increasingly tolerant. 8 The Tribunal noted it had no information indicating that the government condoned harassment or physical mistreatment of homosexuals by private individuals, or that it condoned or was unwilling or unable to prevent, failures by police to investigate crimes against homosexuals and the independent information that "attitudes of police are themselves in a process of liberalisation". The Tribunal noted information that police raids in the 1990s on gay venues have not recurred and a bombing of a gay venue in Riga in 1998 was investigated by the police (however the Tribunal was not able to locate reports on the outcome of that investigation). The Tribunal referred to material provided by the appellant, and noted that material showed "a low incidence of hostility by police to gays and lesbians who make complaints of violence or harassment". However, the Tribunal considered the Latvian government did not condone the actions of any individual who engaged in criminal activities aimed at homosexuals. 9 The Tribunal concluded that homosexuals who were victims of criminal acts were generally able to pursue complaints against agents of the State, and it was satisfied there would have been, and in the future would be, State protection where sought. The Tribunal said that, apart from the appellant's mother lodging a complaint with the police, the appellant had not sought the protection of the Latvian government or advocacy groups. The Tribunal found (at [95]) that: … [the appellant]'s fear of serious harm by reason of his membership of a particular social group is not well-founded because there is in Latvia adequate protection available from the State for criminal harassment and harm by private individuals, whether homophobic strangers, or by reason of individual police officers who fail to perform their duty to investigate criminal complaints made by homosexuals and who themselves illegally assault complainants such as [the appellant]. 10 The Tribunal went on to consider the claims based on the appellant being a Russian speaker in Latvia and a stateless person and, briefly, the claims cumulatively. The Tribunal said there was no information that a person who is Russian speaking, stateless and homosexual would be unable to access the avenues of protection and redress the Tribunal was satisfied existed in Latvia.

The judgment of the Federal Magistrate 11 While the appellant filed an application for judicial review on 19 September 2003 and an amended application on 14 March 2005, at the hearing before the Federal Magistrate he raised only two issues in relation to his claim to fear persecution in Latvia as a homosexual. The grounds for review were, first, that the Tribunal ignored material submitted to it identifying a failure of State protection to homosexuals in Latvia and, secondly, that the Tribunal misapplied or misunderstood the concept of persecution under the Refugees Convention. 12 In relation to the first ground, the Federal Magistrate noted the appellant had provided to the Tribunal correspondence, dated 30 May 2003 and 19 June 2003, which included information concerning the treatment of homosexuals in Latvia, and, at the end of the hearing before the Tribunal, provided a report on sexual orientation discrimination in the Baltic States. It is the later report the appellant claimed the Tribunal failed to consider. The Federal Magistrate concluded the Tribunal had dealt with that report, on the basis of a fair reading of the Tribunal's decision and in particular at [35] and [90] of the decision. While the appellant claimed the Tribunal had failed to deal with the reality of the claimed failure of State protection of homosexuals in Latvia, the Federal Magistrate noted the appellant did not dispute that there were structures in Latvia that in theory might be employed to deal with the asserted failure of State protection. The Federal Magistrate noted the appellant's claim that in reality, those structures were ineffective and that the Tribunal had erred in considering the theoretical form of State protection. However, the Federal Magistrate rejected that submission. 13 The Federal Magistrate concluded the Tribunal had proceeded on the basis that the appellant's claims of suffering serious harm were true, including the claim that some of the persecution was perpetrated by the Latvian police. However, the Federal Magistrate noted (at [8]) the Tribunal had found there was adequate State protection: Nevertheless, the presiding member found that effective State protection was available in Latvia even against the risk of harm being suffered at the hands of State agents such as the police. (…) The presiding member found that the applicant could take advantage of the assistance of homosexual advocacy groups and human rights advocacy groups in order to deal with any unlawful acts by the police or others. The Federal Magistrate concluded that the Tribunal, in making that finding, took into account the report submitted to it by the appellant which indicated that "attitudes in Latvia towards homosexuals including by Government agents such as the police was improving". 14 In relation to the second ground, the appellant claimed his case was similar to the facts in VGAC v Minister for Immigration [2004] FMCA 495 ("VGAC"). That case concerned a decision of the Tribunal where the presiding member misapplied the definition of serious harm under s 91R of the Migration Act 1958 (Cth) ("the Act") which constituted a jurisdictional error and the matter was remitted to the Tribunal. The Federal Magistrate did not consider that case relevant as the Tribunal had not misunderstood or misapplied the definition of "serious harm". The Federal Magistrate dismissed the application for judicial review.

The submissions of the parties 15 In summary, the notice of appeal raised the following grounds of appeal:

1. The Federal Magistrates found that the case referred to by the appellant was 'distinguishable' on its facts from his matter. That matter concerted was VGAC & Anor v Minister for Immigration [2004] FMCA 495* (19 August 2004).
2. The appellant argued that the matter was similar to his case and ought to be taken into account by the court.
3. His Honour also rejected the appellant's arguments regarding the Tribunal's failure to comply with its obligations under s 424A(1) of the Act. The appellant is of the view that the Tribunal ought to give him an opportunity to comment upon particulars of information related to report issued by the Latvian Gay Support Group and International Gay Association in Europe. According to the report 'around 40 per cent of gays and lesbians in Latvia have been subjected to various forms of harm, including beatings, threats, intimidation, deprivation of protection and etc'. (Errors in original) 16 At the hearing, the appellant made submissions that were set out in a document translated into English. The submissions were that the Tribunal had not dealt with the report provided by the appellant concerning discrimination and persecution of sexual minorities in Latvia and that the Federal Magistrate erred in not finding the Tribunal had committed a jurisdictional error in that respect. In particular, the appellant noted in his written submission the Tribunal had: (i) Failed to mention that 20 per cent of the interviewed homosexuals had been subjected to serious violent attacks. Moreover, 40 per cent of them had been attacked more than 3 times; (ii) Failed to mention that 10 per cent of them had been attached by armed persecutors; (iii) Failed to mention that more than 40 per cent of them had been subjected to harassment; (iv) Failed to mention that 75 per cent had a fear of persecution for reason of their homosexuality; (v) Mentioned that there had been 5 complaints reported to the police but failed to mention that the rest had been afraid to apply to the police for fear of persecution. The appellant submitted those failures can be regarded as evidence of the Tribunal's failure to take into account information that was the critical part of his evidence and claims and the Tribunal was obliged to deal with the information. Further, the appellant claimed the Tribunal should have noted 'persecution' is the key element of the Convention and s 91R of the Act and that pursuant to s 91R, the Tribunal was obliged to determine whether the appellant was subjected to serious harm and whether his fear of persecution was well founded. Again, the appellant relied on VGAC. 17 The Minister submitted the Federal Magistrate did not err in concluding VGAC was irrelevant to this matter, noting that VGAC concerned whether s 91R was a non-exhaustive definition of "serious harm". Counsel for the Minister submitted that with or without a finding by the Tribunal whether the harm experienced by the appellant was serious and therefore came within the definition of persecution under s 91R of the Act, the Tribunal made a finding, supported by independent country information, that there was effective State protection.

The appeal and its disposition 18 In substance, the appellant claims the Tribunal failed to consider whether Latvia was able to afford the appellant protection from either private individuals or the State (police officers) who harmed him because of his membership of a particular social group, namely homosexual men in Latvia. In particular, the Tribunal either ignored or failed to take into account the report provided to it by the appellant. 19 It is convenient to set out the following from the Tribunal's reasons for decision: 35. At the hearing, [the appellant] provided a copy of an article …, part of a report of a study of sexual orientation discrimination in the Baltic States of Lithuania, Latvia and Estonia which was undertaken in July to September 2002 …. A copy of the report is contained on the Tribunal's file. 36. The report tabulates responses from participants in a survey about harassment or other ill treatment they had experienced in different aspects of their lives, the form that harassment took, and the results of the participants' attempts to report harassment or ill treatment. I do not here summarise those results, but note that the results in relation to police violence against gays and lesbians (that is, the gravamen of [the appellant's] claim of persecution) show that no respondent reported violence by police and, of the few (five respondents) who reported violence by others (mainly strangers) to the police, the police displayed a neutral approach to the victim in two cases and a hostile approach in three cases. Only five respondents reported harassment (that is, not amounting to physical violence) by police. Only three of those respondents who had experienced harassment reported the harassment to the police, two who experienced a hostile attitude by the police. However, the results show that a significant minority of gays and lesbians in Latvia experience low level harassment in many areas of their lives (employment, family, accommodation, etc). … 90. Further, Latvia has seen the rapid emergence of homosexual advocacy groups, homosexual social and cultural groups and homosexual venues and events. According to gay activities in Latvia, the official treatment of homosexuals is increasingly tolerant. In several respects, the social attitudes and acceptance of homosexuals is further advanced in Latvia than in many Western industrialised countries, as it evidenced not merely by the decriminalisation of homosexual activity but in the significant majority of the population which, according to [the appellant's] own supporting material (the report handed up at the hearing) reportedly supports equal rights for gays and lesbians and legal recognition of same-sex partnerships. Activists in Latvia report that, although gays and lesbians in Latvia still fear harassment in the workplace and social censure, they are able to access the protection of the authorities in cases of harassment. The Tribunal went on to find that, on the basis of independent information, the Latvian government "does not condone the actions of any individual in engaging in criminal activities aimed at causing harm to homosexuals". Further, the Tribunal found no evidence that alleged actions of police officers as claimed by the appellant were "encouraged or condoned by the Latvian government nor was there any evidence that the Latvian government is unable or unwilling to discipline police officers acting illegally or contrary to their public duty." The Tribunal went on to find it could not be satisfied there was or would be a failure of State protection. 20 The High Court in Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 205 ALR 487 upheld an appeal from a Full Court of this Court. In that case, the Full Court had concluded that the Tribunal had failed to consider the right question, namely, whether, in a practical sense, the State was able to provide protection particularly in light of the pervasive pattern of harm and that failure constituted a jurisdictional error. In their joint judgment, Gleeson CJ, Hayne and Heydon JJ said (at [29]): The Tribunal's finding that it was not satisfied that the Ukrainian government was unable to protect the first respondent, and its finding that the first respondent was not a victim of persecution, must be understood in the light of the terms of Art 1A(2), the evidence that was before the Tribunal, and the nature of the case the first respondent sought to make. Once the Tribunal came to the conclusion that the contention that the Ukrainian authorities instigated or encouraged the harm suffered by the first respondent must be rejected, and that the attacks on him or his property were random and unco‑ordinated, then its finding about the government's willingness and ability to protect the first respondent must be understood as a finding that the information did not justify a conclusion that the government would not or could not provide citizens in the position of the first respondent with the level of protection which they were entitled to expect according to international standards. That being so, he was not a victim of persecution, and he could not justify his unwillingness to seek the protection of his country of nationality. It was not enough for the first respondent to show that there was a real risk that, if he returned to his country, he might suffer further harm. He had to show that the harm was persecution, and he had to justify his unwillingness to seek the protection of his country of nationality. 21 It may be accepted that in the present matter, the Tribunal did not refer specifically to those parts of the 2002 report on sexual orientation discrimination in, amongst other places, Latvia, which the appellant highlighted in his submissions in this Court (see [16] above). That report, in terms, recorded that 19% of the respondents to the survey had experienced violent attacks as a result of their sexual orientation and that the violence had taken the form of beatings, being hit, punched or kicked or assaulted with a weapon. However, in the section of its reasons discussing the appellant's claims based on his sexual orientation, the Tribunal plainly was proceeding on the basis that homosexual men might be the subject of harm in Latvia though the focus of its discussion was on State protection which might be afforded to such people and the procedures and processes that might be followed to deal with such incidents. Earlier in its reasons the Tribunal noted that the report tabulated responses from participants in a survey about harassment or other forms of ill-treatment and the form the harassment took. It is very difficult to avoid the conclusion that the Tribunal was alive to the information that the appellant now relies on in seeking to impeach the Tribunal's decision. Perhaps putting it slightly differently, the appellant has not demonstrated that the Tribunal ignored or overlooked material information central or critical to his case. 22 The appellant has not established that the Federal Magistrate erred in dismissing his application for judicial review. The appeal should be dismissed with costs. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Date of Hearing: 12 September 2005

Date of Judgment: 30 November 2005