NAFL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 266

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'."