NARY v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 45 (4 March 2004)

Last Updated: 4 March 2004

FEDERAL COURT OF AUSTRALIA

NARY v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCAFC 45

NARY v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 2005 OF 2003


HEEREY, SUNDBERG and CRENNAN JJ
4 MARCH 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 2005 OF 2003

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

JUDGES:	HEEREY, SUNDBERG and CRENNAN JJ
DATE OF ORDER:	4 MARCH 2004
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 2005 OF 2003

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

JUDGES:	HEEREY, SUNDBERG and CRENNAN JJ
DATE:	4 MARCH 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:

1 The appellant is a citizen of Ukraine who arrived in Australia on 25 April 2001 on a visitor’s visa. On 17 May 2001 he applied for a Protection (Class XA) visa. On 14 November 2001 a delegate of the respondent refused to grant the visa. The Refugee Review Tribunal affirmed the delegate’s decision. An application for review of the Tribunal’s decision was dismissed by a Judge of the Court. The present appeal is from that decision.

2 The appellant’s claims were set out at length by the Tribunal and were summarised by the primary judge. He claimed a well-founded fear of persecution because of his political opinion flowing from his membership of the Social Democratic Party of Ukraine (United) ("SDPU(O)"), which he had joined in November 1995. He claimed to have experienced persecution in the past and said the authorities would not protect him if he were to return to Ukraine. The appellant gave the following history of his experiences between 1990 and his departure for Australia in 2001. Beginning in August 1990 he worked at a teaching institute in his hometown of Poltava. He was fired from this institute because of his involvement in the SDPU(O). Conflicting dates are given for this termination of employment. In his original visa application he said he was employed by this institute until May 1995. However both the Tribunal and the primary judge record that the appellant said that he had been fired from the institute in 1996. Presumably this date was given in his interview with the Tribunal. From June 1995 until February 1998 he worked as a soccer trainer (for a different employer) in Poltava. In March 1998 he went to England to study English. He went there because of threats he had received resulting from his political activities. People in plain clothes threatened to put him in gaol or make him disappear if he did not stop his political activity. He returned to Ukraine in February 1999. From then until November 2000 he again worked as a soccer trainer for the same employer for whom he had worked before he went to England. In November 2000, during a meeting of the SDPU(O) in Poltava, policemen broke into the building and arrested the appellant and others and detained them for four days. After his release his wife and child were threatened. The Tribunal noted that the appellant subsequently said that it was in September 2000 that his wife and child went to live with the wife’s parents because of threats.

3 The Tribunal did not accept a number of the appellant’s claims. In relation to those relating to membership of the SDPU(O), the Tribunal referred to 1997 country information to the effect that the post-independence period in Ukraine saw the emergence of a multi-party system reflecting a broad range of political viewpoints, and there was no indication that governmental entities repressed individuals or political parties because of their views. The country information also recorded that human rights organisations had not reported any complaints of violations of human rights by the Security Service in Ukraine. Having regard to this information the Tribunal did not accept that the appellant had been threatened as a result of his involvement in the SDPU(O) or that he had been fired from his employment for this reason.

4 The Tribunal referred to other country information that during 1999 and 2000 a close partnership developed between President Kuchma and several leaders of the SDPU(O), and that the SDPU(O) was the first party to nominate Kuchma for re-election. Viktor Medvedchuk, the SDPU(O) leader, was elected Deputy Parliamentary Speaker in February 2000, and was now the President’s Chief of Staff. The Tribunal said:

"Having regard to the independent evidence indicating that the SDPU(O) is one of the few parties supporting President Kuchma’s government, I do not accept that the Applicant would have been persecuted by the government authorities in Ukraine by reason of his involvement in the SDPU(O) after he returned from England in 1999."

The Tribunal then referred to inconsistencies in the appellant’s evidence, and continued:

"Having regard, once again, to the independent evidence indicating that there is a close relationship between President Kuchma and the SDPU(O), I do not accept that the Applicant was arrested and detained for four days in November 2000 by reason of his political opinion, nor do I accept that he and his wife and child were subsequently threatened for that reason. I accept the Applicant’s evidence that he and his wife separated in February 2000 and that she and their child left his home town in September 2000, before he claims these events took place."

5 The ground of review before the primary judge was that the Tribunal

"refused the application on ground ‘do not accept that there is a real chance that the applicant will be prevented from carrying on his business, arrested, imprisoned or beaten or otherwise persecuted by reason of his political opinion if he return to Ukraine now or in the reasonable time’."

The quoted words are essentially those used by the Tribunal in ultimately rejecting the appellant’s claim that there was a real chance of persecution if he were to return to Ukraine.

6 The appellant was not represented before the primary judge. According to his Honour, the appellant’s principal complaint was that a friend who was in a similar position to him had obtained a protection visa. His Honour said that "other than possibly in exceptional circumstances (which are not present here), the fact that the Tribunal has not referred to, relied on or decided a matter consistently with, other decisions of the Tribunal is irrelevant". He referred to authorities to this effect. The primary judge said he had read the Tribunal’s reasons, and could not discern any jurisdictional error.

7 The only ground of appeal was that the primary judge

"failed to take into account relevant material and facts.

(a) The decision was made with no consideration to the political situation in Ukraine.
(b) The Police [were] unwilling to protect members of the opposition Party because the Police are under control of the ruling Party.

We have read the Tribunal’s reasons with care. The country information before it was strong, it was put to the appellant, and it is apparent from the Tribunal’s reasons that the appellant was unable to deal with it or explain it away. The credibility findings were amply justified by the country information and the inconsistencies in the appellant’s evidence. We can discern no error in the Tribunal’s approach, let alone jurisdictional error. The complaints in the notice of appeal that the primary judge failed to take into account the two matters referred to above, misunderstand his Honour’s function. If notionally directed at the Tribunal, they are without substance, and simply attempt to impugn the Tribunal’s fact findings. These included a finding, based on country information, relating to the political situation in Ukraine. The appellant simply disagrees with the finding. The Tribunal also found that there was a close relationship between the President and the SDPU(O). On the basis of this, the Tribunal did not accept that the appellant had been arrested by the police and detained by reason of his political opinion. The "opposition party" referred to in the second complaint is presumably the SDPU(O). The only evidence that the police force was unwilling to protect members of the SDPU(O) is the appellant’s evidence that he was arrested by the police in November 2000. The Tribunal did not believe him. The primary judge’s role was limited to determining whether there was evidence to support the Tribunal’s findings. His Honour correctly decided there was.

8 The appeal must be dismissed.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Heerey, Sundberg and Crennan.

Associate:

Dated: 4 March 2004

The appellant appeared in person.

Counsel for the Respondent:	R Francois
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	4 March 2004
Date of Judgment:	4 March 2004