NAFL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 266 (25 November 2003)

Last Updated: 25 November 2003

FEDERAL COURT OF AUSTRALIA

NAFL v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCAFC 266

MIGRATION - appeal - no error disclosed

NAFL v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 521 OF 2003

HILL, MARSHALL AND FINKELSTEIN JJ

25 NOVEMBER 2003

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 521 OF 2003

ON APPEAL FROM A SINGLE JUDGE OF THE COURT

BETWEEN:	NAFL APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	HILL, MARSHALL AND FINKELSTEIN JJ
DATE OF ORDER:	25 NOVEMBER 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. 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 521 OF 2003

ON APPEAL FROM A SINGLE JUDGE OF THE COURT

BETWEEN:	NAFL APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	HILL, MARSHALL AND FINKELSTEIN JJ
DATE:	25 NOVEMBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT

1 This is an appeal from a judgment of Hely J in which his Honour dismissed the appellant's application for judicial review of a decision of the Refugee Review Tribunal ("the RRT").

2 The appellant is a citizen of Ukraine. He entered Australia on 20 October 2000. On 1 December 2000 he lodged an application for a protection visa. The basis of his claim was that he feared persecution if returned to Ukraine on account of his Jewish ethnicity.

3 In his statement accompanying his application for a protection visa, the appellant claimed that ultra nationalist, anti-Semitic groups had attacked him, and that Ukrainian authorities had not taken his complaints seriously. He stated that he had no economic reason to leave Ukraine but that "(i)t simply became unbearable to be humiliated, abused and victimised just because I am a Jew."

4 On 23 March 2001, the appellant's application for a protection visa was refused by a delegate of the respondent. An application for a review of that decision was made to the RRT. On 12 November 2002, the RRT handed down its decision dated 22 October 2002 in which it affirmed the decision of the delegate not to grant a protection visa to the appellant.

5 An issue arose before the RRT whether the appellant had a right to enter and reside in Israel under that country's Law of Return, in which case the appellant may not have been able to claim refugee status in Australia. Ultimately the RRT did not determine whether the appellant had a right of return to Israel.

6 The RRT said that it was:

"...satisfied that the fact that his mother was not a Jew, that there is no evidence that his grandparents were Jews, and that he has been attending a Christian church for a significant period are sufficient to cast doubt on his acceptance by Israel as an immigrant under the Law of Return."

Accordingly it assessed his claims by reference to claimed persecution in Ukraine.

7 The RRT observed that anti-Semitism has had a long history in Ukraine but that it was decreasing and that government action against anti-Semitism was increasing. It stated that:

"Very recent advice from the Department of Foreign Affairs, sourced from human rights groups and Jewish organisations in Ukraine, indicates that anti-Semitic acts continue to occur in parts of the Ukraine, but that `Jewish persons are not systemically persecuted, harassed or targeted in Ukraine by official groups or persons of authority'."

8 The RRT accepted that:

* the appellant had experienced verbal harassment;

* the appellant was assaulted on one occasion by an ultra-nationalist group, on account of his Jewish ethnicity;

* random acts of violence by ultra-nationalist youths or criminal gangs may occur in the future.

9 The RRT found that should the appellant face Convention based persecution if returned to Ukraine he would be able to avail himself of adequate state protection. It considered that there was not a real chance, in any event, that he would be persecuted for reasons of his Jewish ethnicity if returned to Ukraine in the foreseeable future.

10 Earlier in its reasons the RRT observed that:

"The applicant himself was not an active participant in Jewish affairs, not even attending Jewish social and cultural events after about 1996, and was employed in a mainstream community organisation."

11 The appellant's application for judicial review of the RRT's decision was heard by Hely J on 1 April 2003. On 8 April 2003, his Honour published his reasons for judgment in which he rejected the application. At [3] of his reasons for judgment, Hely J recounted various claims put to the RRT by the appellant in some depth, including those which the RRT did not accept.

12 Before Hely J, as well as before this Court, the appellant submitted that various pieces of country information were not taken into account by the RRT. His Honour demonstrated that that was not so and that the information said to have been ignored was referred to in the reasons for decision of the RRT. In particular, at p13 of its reasons for decision the RRT referred to the documents which were submitted by the appellant's advisor, in response to the RRT's invitation on 30 September 2002 for him to comment on information concerning anti-Semitism in Ukraine. The RRT observed that those documents "appear to have been downloaded from the Union of Councils for Soviet Jews' website". They are set out by title in the last paragraph at p13 of the RRT's reasons and the first paragraph at p14. Plainly therefore, the RRT had regard to this material. Further, his Honour said, rightly in our view, that it was a matter for the RRT to decide what weight should be given to the material it had before it concerning anti-Semitism in Ukraine.

13 Hely J also dealt with a number of issues raised in the appellant's application but which were not the subject of an oral submission by the appellant before his Honour. Those issues were concerned with questions going to the merits of the RRT's decision rather than with any alleged jurisdictional error.

14 As before Hely J, the appellant represented himself on the appeal with the assistance of an interpreter. The appellant did not advance any submissions on the appeal that identified any jurisdictional error in the reasons for decision of the RRT. Having carefully read those reasons and the reasons for judgment of Hely J we do not consider that the RRT committed any legal error or that his Honour erred, in any way, in dismissing the application at first instance. The appellant complained that the RRT had made wrong findings of fact which the appellant did not identify. Even if the RRT was in error in the findings it made, we agree with Hely J that no jurisdictional error would have been made.

15 Accordingly, the appeal should be dismissed, with costs.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Hill, Marshall and Finkelstein.

Associate:

Dated: 25 November 2003

The appellant appeared for himself
Counsel for the Respondent:	Mr G Kennett
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	25 November 2003
Date of Judgment:	25 November 2003