NARY v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 45

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."