NARX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 41

FEDERAL COURT OF AUSTRALIA

NARX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 41 NARX v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 1658 OF 2003 HEEREY, SUNDBERG and CRENNAN JJ 1 MARCH 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1658 OF 2003

On appeal from a judge of the Federal Court

BETWEEN: NARX

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: HEEREY, SUNDBERG and CRENNAN JJ

DATE OF ORDER: 1 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 1658 OF 2003

On appeal from a judge of the Federal Court

BETWEEN: NARX

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: HEEREY, SUNDBERG and CRENNAN JJ

DATE: 1 MARCH 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT

THE COURT:

1 The appellant is a citizen of Ukraine. His application for a protection visa was refused by the respondent's delegate. That refusal was affirmed by the Refugee Review Tribunal. A judge of the Court dismissed his application for a review of the Tribunal's decision. He appeals to the Full Court from the primary judge's decision. 2 By letter dated 21 January 2003, posted to his last known place of residence, the appellant was notified that the Tribunal was unable to make a decision in his favour on the material before it, and that accordingly he was invited to come to a Tribunal hearing to give oral evidence and present arguments in support of his claims. See Migration Act 1958 s 425. The letter informed the appellant of the date of the hearing. He told the Tribunal that he wanted to come to a hearing. The Tribunal arranged for an interpreter to be at the hearing, but the appellant did not attend. He did not contact the Tribunal to explain his failure to attend. In its decision the Tribunal member recorded that in view of the foregoing, he proceeded to reach a decision on the basis of the material already before him. 3 The applicant included with his visa application a short statement in which he said he had been a member of the Ukrainian Nationalists' Congress Party which was opposed to the government. He said he had become the leader of a primary branch of the Party when he was in a technical college. From 1993 to 1996, when he was deputy principal of a school, he had organised a primary branch there as well. He said he organised trips to picket the Ukraine Supreme Soviet and demanded the sacking of the Cabinet Chairman and the dissolution of the Supreme Soviet. The appellant said that picketers and protestors often clashed with police. His role led first to his wife being sacked, and later to the loss of his job. He said he was then offered a position in a night school where the students were delinquent teenagers who had been released from prison. He claimed that in December 2000 he joined the campaign "Ukraine without Kuchma", the aim of which was to overthrow the President's "criminal anti‑Ukrainian regime". He said that police prohibited protestors from setting up a tent camp, and detained a number of activists including the appellant. They threatened to "deal with" him and his family. He was sacked in March 2001 under pressure from the authorities. He claimed to fear for his health and life and for that reason did not want to return to Ukraine. 4 The appellant also said people were being persecuted for belonging to the Greek Catholic Church that was beginning to revive after having been banned during the communist regime. 5 The Tribunal noted that in the statement accompanying the appellant's visa application he said people were being persecuted for belonging to the Greek Catholic Church, whereas in the visa application form he said his religion was Orthodox. It also said that the delegate had been uncertain whether the appellant was claiming to have been a member of the Ukrainian National Assembly (UNA) or the Congress of Ukrainian Nationalists. (In passing we observe that in his application to the Court he seems to treat these two bodies as the same – "Ukrainian Nationalistic Congress Party (Ukrainian National Assembly)"). 6 The Tribunal recorded country information that individuals can and frequently do criticise the Ukrainian Government without reprisal; that the Government generally respects the right to freedom of assembly, and that in practice unlicensed demonstrations are common and most occur without interference by the police. 7 The Tribunal concluded by saying: "These are all matters which could have been discussed at a hearing before the Tribunal but, as referred to above, having said that he wanted to attend the scheduled hearing the Applicant did not attend nor did he contact the Tribunal to explain his failure to attend. I am unable to be satisfied on the evidence before me that the Applicant was persecuted by reason of his involvement in a nationalist political party in Ukraine as he has claimed. In particular, I am unable to be satisfied that he was sacked from his employment, detained by the police, or threatened by the Ukrainian authorities by reason of his expression of his political opinion or his attempt to take part in street protests associated with the 'Ukraine without Kuchma' campaign. I am likewise unable to be satisfied on the basis of the evidence before me that the Applicant was persecuted by reason of his religion in Ukraine." 8 The primary judge said that when the application for review came on for hearing, the appellant informed him that he was unable to attend the Tribunal hearing because he was in a bad emotional state and indeed close to a nervous breakdown. He also told his Honour he had sent a written submission to the Tribunal. His Honour concluded that because the Tribunal said it had not heard from the appellant since he indicated he would be attending the hearing, the submission must have gone astray. 9 Before the primary judge the appellant raised two matters, neither of which, said his Honour, constituted jurisdictional error on the part of the Tribunal. The first was that the Tribunal failed to take into account the submission he said he sent to it. His Honour said the appellant "accepted the difficulty of saying the Tribunal had made an error when it did not consider material which it never saw". The second matter was that the Tribunal took into account country information from the United States Department of State which, he said, did not present an accurate picture. As to this his Honour said at [12]: "The Tribunal was entitled to inform itself 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." 10 The appellant's ground of appeal is 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) I was not able to attend hearing in the Refugee Review Tribunal because of my emotional state, and that prevented me from [giving] more information to the Member. (c) The Ukrainian Authorities [are] unwilling to protect members of the other than Ukrainian ethnic group." 11 The first two matters were those put to the primary judge. No error is shown in his Honour's rejection of these complaints. The third matter does not appear to have been put to the primary judge. Accordingly his Honour made no error in not dealing with it. In any event, there was no evidence before the Tribunal or his Honour that the appellant is a member of a group "other than Ukrainian ethnic group". In his visa application he describes himself, his wife, sons, mother and brother as Ukrainian, and in answer to the question which "Ethnic group you belong to" he states "Ukrainian". The written statement accompanying his visa application makes no reference to his belonging to an ethnic group "other than Ukrainian ethnic group". 12 Written submissions filed on the appeal rely on two matters. The first is that the Tribunal erred in not seeking to clarify with the appellant which of the two political parties he claimed to belong to. The appellant was afforded the opportunity to attend the Tribunal hearing, and said he intended to. That was the occasion for him to be asked to resolve the membership question. The Tribunal made clear to him in its letter that it was unable to determine the application in his favour on the material before it. It was therefore plain that it wanted further information from the appellant. He has only himself to blame for not attending, or not contacting the Tribunal to obtain an adjourned date. That was a possibility raised by the Tribunal's letter. 13 The second matter in the written submissions is: "The Tribunal was aware of my situation in Ukraine. I was a rugby coach in Ukraine and during my tenure as coach, I several international games were played which involved travel abroad. However, after joining the political party I was thereafter unable to travel freely."