NATC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 52

FEDERAL COURT OF AUSTRALIA NATC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 52 NATC v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N2251 OF 2003 HEEREY, SUNDBERG and CRENNAN JJ 5 MARCH 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N2251 OF 2003

On appeal from a judgment of a single judge of the Federal Court

BETWEEN: NATC and NATD

APPELLANTS

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: HEEREY, SUNDBERG and CRENNAN JJ

DATE OF ORDER: 5 MARCH 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellants to pay the respondent's costs. 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 N2251 OF 2003

On appeal from a judgment of a single judge of the Federal Court

BETWEEN: NATC and NATD

APPELLANTS

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: HEEREY, SUNDBERG and CRENNAN JJ

DATE: 5 MARCH 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT

the court: 1 The appellants are citizens of Russia. They appeal from a decision of a Judge of this Court dismissing an application under s 39B of the Judiciary Act 1903 (Cth) to review a decision of the Refugee Review Tribunal ("the Tribunal"). The Tribunal affirmed a decision of a delegate of the respondent to refuse the grant of a protection visa to each of the appellants. 2 Only one of the appellants, NATC, has made specific claims under the Refugees Convention as amended by the Refugees Protocol. His domestic partner, NATD, was included in that application as a member of his family unit, as permitted by the Migration Regulations. Following the Tribunal, we will refer to her hereafter as his wife. As a consequence of her inclusion as described these reasons are directed to the claims of the appellant, NATC. 3 The second appellant has affirmed and filed an affidavit on 26 February 2004 in support of an application for leave to wholly amend the notice of appeal to contain grounds: "1. His Honour erred in not finding that the RRT denied the Applicant procedural fairness. 1.1 RRT found 3 Summons were not genuine but the RRT did not put the issue of authenticity of those 3 Summons to the Applicants for their consideration and response. 2. His Honour erred in not finding that the RRT failed, or constructively failed, to exercise jurisdiction: (i) in failing to address the issue of persecution re the risk of NATC being forced to go to Chechnya, per se, rather than being forced to go in the context of it being contrary to law to refuse to go to Chechnya; (ii) in failing to find that the RRT's finding was not supported by logical grounds or probative material." 4 The original notice of appeal was prepared without legal advice. The amended notice of appeal was prepared after obtaining legal advice. The respondent did not oppose the filing of the affidavit or the necessary grant of leave and leave was granted. 5 The primary judge made clear to the appellants the limited bases upon which the Court can intervene in the decision of the Tribunal which the appellants sought to impugn through judicial review. The primary judge considered that none of the numerous factual criticisms of the Tribunal's findings and approach showed an error of law, let alone jurisdictional error. In doing so, the primary judge had regard to the findings of the Tribunal and the materials upon which the Tribunal's decision was made. 6 From the information filed in support of his application for a protection visa, and later in support of his review of that decision before the Tribunal, it appears that the appellant had been drafted by the Zheleznodorozhny District Registration and Enlistment Office in the Moscow region of the then Soviet Union. His military service record shows that he was a trainee, attached to a military unit for about five months in 1986 and that during this time did not see "the action and did not participate in combat campaigns". From October 1986 the appellant was attached to another military unit as a senior mechanic and was discharged in May 1988. A duplicate military service record, issued on 18 August 1998, records that as at 10 June 1998 the appellant was registered in the Army Reserve, with the military profession description of "senior mechanic; medium tank driver." The appellant states that he opposes the war with Chechnya as he does not wish to participate in military action against civilians and for that political reason he does not wish to serve there.