NARX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1149 (8 October 2003)

Last Updated: 27 January 2004

FEDERAL COURT OF AUSTRALIA

NARX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1149

MIGRATION – application for judicial review of a decision of the Refugee Review Tribunal to affirm a decision of a delegate of the Respondent Minister for Immigration and Multicultural and Indigenous Affairs to grant to the applicant a protection visa.






























NARX v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N722 OF 2003

HILL J
SYDNEY
8 OCTOBER 2003

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N722 OF 2003

BETWEEN:	NARX APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HILL J
DATE OF ORDER:	8 OCT 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.
2. The applicant pay the respondent Minister’s costs of the application.

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	N722 OF 2003

BETWEEN:	NARX APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	HILL J
DATE:	8 OCT 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The applicant is a citizen of the Ukraine. He applied to the respondent Minister for a protection visa. That application was refused and the applicant then applied to the Refugee Review Tribunal (‘the Tribunal’) to review the Minister's decision.

2 The applicant did not participate in the hearing before the Tribunal. In the usual course he was advised that the Tribunal was unable to give a favourable decision on the papers. He was advised that the application would be heard by the Tribunal on 20 March 2003. The applicant responded by indicating that he wished to appear at the review before the Tribunal.

3 The applicant has told me that he was unable to attend because he was in a bad emotional state and indeed close to a nervous breakdown. It is not suggested that he told the Tribunal that he could not attend for medical reasons. The applicant also has told me that he sent to the Tribunal a written submission. Enclosed with that submission were copies of documents which the applicant says he forwarded to the Tribunal. The Tribunal in its reasons notes that it had not heard from the applicant since he responded indicating he would attend. It would seem that the letter and enclosed documents in some way went astray.

4 The applicant included with his application for a protection visa a short statement which had been translated from the Russian language. He said that he had been a member of the Ukrainian Nationalists Congress Party. That party was opposed to the government. He said he had become the leader of a primary branch of the Ukrainian Nationalists Congress Party in a technical college and later, from 1993 to 1996, when he was deputy principal of a school, he had organised a primary branch of the Ukrainian Nationalists' Congress there too. He said that he had organised trips to picket the Soviet Union and demanded the sacking of the Cabinet chairman and the dissolution of the Supreme Soviet.

5 In this time the applicant, with other picketers and protesters, clashed with the police. His role led first to his wife losing her job and then in 1996 to him losing his job. He said that he was then offered a job in a night school where the students were delinquent teenagers released from prison. He said that in December 2000 he had joined the campaign ‘Ukraine without Kuchma’. The aim of the campaign was, he claimed, to overthrow the criminal anti-Ukrainian regime of the President and others associated with him.

6 The applicant said that police prohibited protesters from setting up a tent camp and detained a number of activists including the applicant. He was pressured and he and his family threatened. He was sacked in March 2001. The applicant claimed to fear for his health and life and for that reason wished not to return to the Ukraine.

7 The Tribunal in its reasons indicated it was unable to be satisfied, on the material before it, which of two parties to which it was referred the claimant said he was a member of. It referred to a report of the United States State Department indicating that the Ukrainian government generally respected rights to assembly and that unlicensed demonstrations did occur without interference from the police.

8 The Tribunal raised a number of matters in its reasons to indicate difficulties in the application which the applicant had made. Because the applicant did not attend the hearing, the Tribunal member indicated that these difficulties could not be resolved. The Tribunal said that it was unable to be satisfied on the evidence before it that the applicant had been persecuted by reason of his involvement in a nationalist political party in the Ukraine.

9 The Tribunal was not satisfied that the applicant had been sacked from his employment, detained by the police or threatened. Insofar as there had been a suggestion of religious persecution in the original claim, the Tribunal was likewise not satisfied that the applicant had been persecuted for religious reasons. The Tribunal concluded that it was not satisfied that the applicant had a well founded fear of persecution such as to be a person to whom Australia had protection obligations.

10 The applicant seeks judicial review of the Tribunal's decision pursuant to s 39B of the Judiciary Act 1903 (Cth). The applicant was not represented before me but had the assistance of an interpreter. Not surprisingly, not being a lawyer, he was unable to demonstrate any jurisdictional error on the part of the Tribunal. He raised two matters in his application to the court. Neither constituted jurisdictional error on the part of the Tribunal.

11 His first ground was that the Tribunal had failed to take into account the submission and documents which he had sent to it but which it had not received. The applicant accepted the difficulty of saying the Tribunal had made an error when it did not consider material which it never saw.

12 The applicant also complained that the Tribunal had taken into account country information from the United States Department of State which he has claimed not to present an accurate picture. The Tribunal was entitled to inform it self by taking into account country information. There is nothing before me to indicate that the information was wrong. However, even if the information was not correct, it was material before the Tribunal which it was entitled to have regard to. It is not the role of this Court in judicial review to consider matters such as the correctness of that information. To do so would be to conduct a merits review rather than a judicial review. There is nothing in the Tribunal's reasons to indicate any jurisdictional error on its part.

13 I have no alternative but to dismiss the application. I would order the applicant pay the respondent Minister's costs of the application.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.

Associate:

Dated: 8 Oct 2003

Counsel for the Applicant:	The applicant appeared in person.
Counsel for the Respondent:	S Lloyd
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	8 October 2003
Date of Judgment:	8 October 2003