Kavun v Minister for Immigration & Multicultural Affairs [2000] FCA 370

FEDERAL COURT OF AUSTRALIA

Kavun v Minister for Immigration & Multicultural Affairs [2000] FCA 370 MIGRATION – protection visa – application for review of a decision of Refugee Review Tribunal ('the Tribunal') refusing grant – whether procedures required by the Migration Act 1958 (Cth) to be observed in connection with the making of the decision were observed Migration Act 1958 (Cth), subss 476(1)(a), (e), (f) & (g) Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547, considered OLEKSANDR KAVUN v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS N 1367 OF 1999 EMMETT J 22 MARCH 2000 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1367 OF 1999

BETWEEN: OLEKSANDR KAVUN

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: EMMETT J

DATE OF ORDER: 22 MARCH 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant 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 N 1367 OF 1999

BETWEEN: OLEKSANDR KAVUN

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: EMMETT J

DATE: 22 MARCH 2000

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicant is a citizen of the Ukraine. He deserted his ship in Australia in April 1997 and applied for a protection visa on 17 April 1997. On 27 May 1997 a delegate of the Minister for Immigration and Multicultural Affairs refused the application for a protection visa. The applicant sought review of that decision by the Refugee Review Tribunal ('the Tribunal'). On 4 November 1999 the Tribunal affirmed the decision not to grant a protection visa. On 23 November 1999 the applicant filed an application for an order of review of the decision of the Tribunal. 2 When the matter was called on for hearing this morning the applicant filed an amended application without opposition from the Minister. The grounds stated in the amended application are as follows: 1. Procedures that were required by the Act to be observed in connection of the making of the Decision were not observed (s. 476(1)(a)). 2. The Decision involved an error of law, being an error involving the incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the Tribunal, or both (s. 476(1)(e) of the Act). Particulars The finding by the Tribunal that the documents produced in support of his claims were fabricated for the purposes of supporting his application for a protection visa was not reasonably open to it on the evidence. 3. The Decision was affected by actual bias (s. 476(1)(f) of the Act). 4. There was no evidence or other material to justify the making of the Decision (s. 476(1)(g) of the Act). 3 The applicant appeared in person before me. He does not speak English and was assisted by Mr Benjamin Perkis who translated the proceedings into the Russian language. In the course of the proceedings before the Tribunal, the applicant was represented by a solicitor. 4 The applicant was unable to advance any detailed submissions in support of the specific grounds to which I have just referred. However, he indicated that the substance of his complaint was a finding made by the Tribunal concerning the authenticity of documents that were tendered to the Tribunal. The Tribunal rejected the authenticity of those documents because they purported to be official documents of the Ukraine but were in the Russian language rather than Ukrainian. The applicant sought to place before me evidence consisting of E-mail communications with a European legal firm concerning the use of Russian in the Ukraine, following its independence in 1991. I rejected the tender of that material on the basis that it was not relevant to any issue that it is open for me to decide. 5 I have considered the detailed reasons of the Tribunal published on 4 November 1999. The applicant's evidence was summarised in some considerable detail by the Tribunal in its reasons. In support of his case before the Tribunal, the applicant produced copies of a number of documents, including the following: (1) a statement indicating that he was arrested on 8 September 1992 on suspicion of calling for the violent overthrow of the constitutional system, a crime under Article 62 of the Criminal Code of the Ukraine;