NAAY v Minister for Immigration & Multicultural Affairs [2002] FCAFC 148 (22 May 2002)

Last Updated: 30 May 2002

FEDERAL COURT OF AUSTRALIA

NAAY v Minister for Immigration & Multicultural Affairs [2002] FCAFC 148

NAAY v MINISTER FOR IMMIGRATION & MULTICULTURAL

AFFAIRS

N 1472 OF 2001

LINDGREN, KIEFEL AND FINKELSTEIN JJ

22 MAY 2002

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1472 OF 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	NAAY APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	LINDGREN, KIEFEL AND FINKELSTEIN JJ
DATE OF ORDER:	22 MAY 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appellant have leave to file in Court, and rely upon, an amended notice of appeal;

2. The appeal be dismissed;

3. 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 1472 OF 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	NAAY APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	LINDGREN, KIEFEL AND FINKELSTEIN JJ
DATE:	22 MAY 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:

Introduction

1 The appellant appeals from orders of a Judge of the Court by which his Honour ordered that the application before him be dismissed and that the appellant pay the respondent's costs. The appellant had applied for review of a decision of the Refugee Review Tribunal ("the Tribunal") dismissing an application by the appellant, his wife and daughter for review of a decision of a delegate of the respondent, the Minister for Immigration & Multicultural Affairs ("the Delegate" and "the Minister" respectively) refusing to grant them protection visas.

Background

2 The appellant is a Russian national. He departed Russia on 18 April 1999 on a Russian passport, accompanied by his wife and daughter. The family arrived in Australia on 20 April 1999. On 19 May 1999 the appellant applied for a protection visa. His wife and daughter were included in his application as members of the family unit. They did not make independent claims to be refugees.

3 On 28 June 1999 the application was refused by the Delegate and a letter was written to the appellant advising him of the refusal.

4 On 27 July 1999 the appellant, his wife and daughter lodged with the Tribunal an application for review of the Delegate's decision. There was a hearing before the Tribunal on 17 July 2001. On 31 July 2001 the Tribunal handed down its decision affirming the Delegate's decision not to grant protection visas.

5 On 8 August 2001 the appellant filed in this Court his application at first instance which was dismissed by the primary Judge on 22 October 2001. The appellant's notice of appeal was filed on 30 October 2001.

6 The appellant appeared in person before the primary Judge but has been represented by counsel on the hearing of the appeal.

7 The appellant moved today for leave to file an amended notice of appeal. The granting of leave was opposed by the Minister. We deferred ruling on the application for leave.

8 The amended notice of appeal refers to the grounds referred to in pars (b), (c) and (e) of subs 476(1) of the Migration Act 1958 (Cth) ("the Act") and asserts that the primary Judge erred by not finding that those grounds were made out. The "particulars" given of grounds (b) and (c) are the same as those given of ground (e). The particulars consisted of a quotation of two passages from the Tribunal's reasons for decision which we set out below.

The appellant's claims before the Tribunal

9 The appellant claimed to fear persecution in Russia by reason of political opinion associated with his being a founding member of a small political organisation known as "Russians for the American Way of Life" ("RFAWL"). He claimed that:

* he and some friends established RFAWL in 1998;

* RFAWL functioned out of premises in St Petersburg apparently leased by "Balt Plastics Company";

* the "taxation police" had broken into the premises on two occasions, the second time on 15 January 1999;

* the Balt Plastics office was sealed and "they" (apparently the appellant and his associates) were thrown out into the street;

* Balt Plastics was charged with having sub-let premises to RFAWL, an unregistered political organisation;

* he had suggested that friends protest over the treatment suffered by Balt Plastics and RFAWL;

* as a result a protest demonstration was held on 23 February 1999 in which protesters were attacked by the "Special Unit Police";

* some protesters were injured, some were arrested and some of those arrested have disappeared;

* he had escaped and went into hiding with his family for some two months, then fled with them to Australia.

10 The appellant's visa to enter Australia as a visitor was issued on 22 March 1999 but he and his wife and daughter did not depart Russia until, as noted earlier, on 18 April 1999. The reasons for decision of the Tribunal included the following passage:

"The applicant was asked why, if he is at risk of immediate arrest on return, he was not arrested at the airport as he left on his own passport. He responded that it could have happened [that is to say, he could well have been arrested and was fortunate that he had not been]. He had been very frightened at the airport. He speculated that it was possible that the authorities were glad to see him leave."

The findings and reasons of the Tribunal

11 The Tribunal observed that the appellant and his family had left Russia and returned to it several times prior to the establishment of RFAWL. The Tribunal did not find convincing the appellant's explanation of the delay until 18 April 1999 in leaving Russia, that explanation being that a friend was making the necessary arrangements and that there were no earlier flights, no matter how much was paid.

12 The Tribunal did not find the appellant's claims convincing and was not satisfied that he had, in March and April 1999, a genuine fear of persecution or that he had such a genuine fear at the time of the Tribunal's decision. The Tribunal said that, in any event, it was not satisfied that any such fear would have been well founded.

13 The Tribunal noted that the only remaining trace of RFAWL seemed to be "a memory of a website and a business card" and further that the organisation had been refused registration as a political organisation, and apparently had no existing members, no publications and no activities. The Tribunal observed that the appellant and his family were able to avoid arrest for nearly two months between the time of the demonstration and their departure from Russia on their own passports. The Tribunal considered the appellant's claims in regard to RFAWL, the demonstration and hiding from the authorities to be "inherently improbable" and was not satisfied that those claims were true.

14 The Tribunal declared itself "not satisfied" that the appellant was involved with any political organisation or that he organised any demonstrations or had any confrontation with the authorities, although he may, the Tribunal accepted, have attended a demonstration. If he did attend a demonstration, the Tribunal was not satisfied that this had led to any adverse consequences for him. The Tribunal's reasons for decision included the following alternative ground:

"Even if I am wrong about the RFAWL and the demonstration, I am not satisfied that the Applicants were of interest to the Russian authorities at the time they left Russia nor at the present time."

Consideration

15 The Tribunal's decision was based on its assessment of the appellant's factual claims. It was simply not satisfied that what was claimed was true. Neither of the two passages set out above, read in isolation or in context, nor the Tribunal's reasons for decision generally, expose any of the grounds of review relied on by the appellant. The primary Judge, in reasons more detailed and elaborate than ours, correctly reached the same conclusion. We see no error in his Honour's reasons.

16 The appellant submits that the Tribunal should have gone further than it did by considering whether his "speculation" that he had been allowed to leave Russia because the authorities were glad to be rid of him gave rise to an obligation on the Tribunal to consider a further question. That further question was whether his return to Russia would reawaken interest in him on the part of the authorities.

17 We do not accept this submission. It is based on the assumption that the Tribunal accepted the appellant's own speculation as fact. The Tribunal's reasons show that it did no such thing. The Tribunal was therefore not required to consider the further question suggested.

18 We think the appropriate course is to grant leave for the filing of the amended notice of appeal and to dismiss the appeal.

Conclusion

19 For the above reasons, the Court will order that:

1. The appellant have leave to file in Court, and rely upon, an amended notice of appeal;

2. The appeal be dismissed;

3. The appellant pay the respondent's costs of the appeal.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated: 28 May 2002

Counsel for the Appellant:	Mr RW Killalea
Solicitor for the Appellant:	Ian D Graham & Associates
Counsel for the Respondent:	Mr D Jordan
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	22 May 2002
Date of Judgment:	22 May 2002