NAPA of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1390

FEDERAL COURT OF AUSTRALIA

NAPA of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1390 NAPA OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N730 of 2002 MADGWICK J 1 NOVEMBER 2002 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N730 OF 2002

BETWEEN: NAPA OF 2002

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MADGWICK J

DATE OF ORDER: 1 NOVEMBER 2002

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. No person may have access to any page of the transcript where there is reference to the name or any identifying feature of the applicant except by order of a judge of this Court. 2. The application be dismissed with costs under O 32 r 2(1)(c) of the Federal Court Rules but direct that the order not be entered until seven days after service of a copy of these reasons for decision upon the applicant. 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 N730 OF 2002

BETWEEN: NAPA OF 2002

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MADGWICK J

DATE: 1 NOVEMBER 2002

PLACE: SYDNEY

REASONS FOR JUDGMENT (revised from trancript) HIS HONOUR: 1 It is now 10:42 am and the applicant has not appeared. The case was fixed for hearing at 10:15am. Counsel for the respondent moves the Court to dismiss the application pursuant to O 32 r 2(1)(c) of the Federal Court Rules. Counsel does so, accepting that in a proper case the applicant might be able to avail himself of the provisions of O 35 r 7(2), which permits the Court, even after a judgment order has been entered, to vary or set aside such a judgment or order unless the Court is exercising its appellate or related jurisdiction under Division 2 of Part III of the Federal Court Act 1976 (Cth). Division 2 of Part III deals with the appellate jurisdiction as generally understood and this application is undoubtedly one made in the original, or seeking to invoke the original jurisdiction of the Court. 2 I record that I share counsel's understanding of the matter. I record these matters because, on the face of this case, it appears worrying. The applicant is accepted to have been a Jew in what is now known, apparently, as Ukraine. Simply because he failed to appear before the Refugee Review Tribunal ("the Tribunal"), the Tribunal Member chose, apparently, to disbelieve him in his claim that he had been persecuted and, arguably, the Tribunal Member misunderstood the evidence as to whether there was any complicity of State agents in his claim of persecution and also, arguably, misunderstood the integers necessary for implication of the State in cases of persecution for Convention reasons of a claimant seeking refugee status. 3 However, the Tribunal Member said: "But if I give the applicant the benefit of the doubt and accept that the incidents the applicant claims occurred and amount cumulatively to persecution, I note that Australia does not owe protection obligations to the applicant." 4 The Tribunal Member went on to refer to Article 33 of the Refugees Convention. She referred to the internal law of the State of Israel and to certain descriptions of that country's immigration policy which had been posted on an internet site that is now apparently not accessible. Indeed, the references to Israeli law have not been able to be reproduced. Nor is there any satisfaction that one knows all the relevant Israeli law. Nor was there any expert evidence of what Israeli law is, before the Tribunal Member. 5 Relying on such information, the Tribunal Member's view was that because Israel says, and its law appears to say, that it will take as citizens all-comers who are Jews, Australia has no protection obligations to the applicant on the assumption that the applicant was a persecuted Jew in Ukraine. There was, as far as I can see, no evidence before the Tribunal Member that the applicant had ever been to Israel and the Tribunal Member did not refer to any case decided in this Court which would appear to deal with any comparable factual situation. Absent argument on the point, it appears to me to be a very surprising conclusion. 6 I stress that the respondent has not had an opportunity to address the Court in relation to any of these matters, and I merely mention them to indicate my concerns and to explain why I am going to take a particular course. That course is that I will dismiss the application under O 32, r 2(1)(c), but I will direct that the order not be entered until seven days after service of a copy of these reasons for decision upon the applicant. On the same basis I will make an order that the applicant pay the costs of the proceedings. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.