NAFL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 297

FEDERAL COURT OF AUSTRALIA NAFL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 297 MIGRATION – protection visa – whether the applicant suffered Convention-based persecution – whether the RRT made an error of law to entitle relief under s 39B of the Judiciary Act 1903 (Cth) Judiciary Act 1903 (Cth) s 39B Migration Act 1958 (Cth) s 91R(1)(a)

Law of Return (Israel) NAFL v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 1317 OF 2002 HELY J 8 APRIL 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1317 OF 2002

BETWEEN: NAFL

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: HELY J

DATE OF ORDER: 8 APRIL 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application is dismissed with 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 1317 OF 2002

BETWEEN: NAFL

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: HELY J

DATE: 8 APRIL 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an application under s 39B of the Judiciary Act 1903 (Cth) for a review of a decision of the Refugee Review Tribunal ("the RRT") made on 22 October 2002 affirming the decision of the Minister's delegate not to grant a protection visa to the applicant. 2 The applicant is a national of Ukraine who claimed that he was of Jewish ethnicity. That claim was accepted by the RRT. He claimed to have been the victim of verbal abuse on that account since he was at school, and to have been badly treated in the army because of his Jewish ethnicity. He also claimed to have been the victim of several incidents of violence and intimidation by Ukrainian nationalists as a result of his ethnicity. 3 The RRT dealt with the applicant's specific claims of past persecution as follows: (a) the RRT accepted that he experienced verbal harassment. Independent evidence established that violence was endemic in the Ukrainian army, but the RRT did not accept that the applicant was treated in any worse way because he was a Jew; (b) the RRT thought it unlikely that the applicant had received threatening letters or had the Star of David painted on his door as the extensive coverage of anti-Semitic incidents in the Ukraine did not mention any such incidents and the applicant was not an active participant in Jewish affairs. In any event, even if those incidents occurred, the RRT did not accept that such harassment was sufficiently serious as to amount to persecution in the relevant sense; (c) the RRT accepted that the applicant had been beaten up by a group of young hooligans in 1997 but it was not satisfied that the "essential and significant motivation" (see s 91R(1)(a) of the Migration Act 1958 (Cth)) was the applicant's ethnicity; (d) the police may have been reluctant, for whatever reason, to treat that incident as an anti-Semitic attack, but on the applicant's own evidence they did proceed with the investigation of a criminal assault. The police did not withhold protection from the applicant in relation to this incident, but proceeded with an investigation of the assault on him; (e) the applicant's claim to have been intimidated by the father of one of assailants was unconvincing but, if it occurred, it lacked a specific and anti-Semitic motivation like the original attack. Any intimidation which occurred was not "essentially and significantly" anti-Semitism, but rather personal and criminal conduct on the part of the father designed to prevent his son's arrest on quite serious criminal charges of assault; (f) the RRT accepted that the applicant and a friend had been assaulted in 1999 by a group of nationalist youths celebrating a nationalist festival. Whilst this appeared to be an incident of random, in the sense of "unplanned", violence, perpetrated by a gang of drunken nationalist youths, it appeared to the RRT to have been motivated essentially and significantly by anti-Semitic nationalism. Given the severity of the attack, and the Convention-based motivation, the RRT accepted that this attack amounted to persecution in a Convention-sense; (g) however, the RRT did not accept that the applicant and his friend had been intimidated into withdrawing their complaints to the police in relation to this assault; (h) the RRT did not accept the applicant's claim to have been assaulted in his house in 2000. The RRT was of the view that the applicant fabricated this claim of an anti-Semitic attack to provide himself with a plausible reason for leaving the country later in 2000. The RRT was thus satisfied that the applicant had suffered Convention-based persecution on one occasion in the past. 4 The applicant claimed to have become a Christian after his arrival in Australia. The RRT considered that the applicant's adoption of Christianity was opportunistic, having regard to his prior lack of interest in religion, and was for the purpose of ensuring that the applicant could not avail himself of the Israeli Right of Return. However, the RRT regarded it as doubtful whether the applicant would be accepted by Israel as an immigrant under the Law of Return, and it did not decide the case on the basis that the applicant had third-country protection. 5 The RRT then considered whether there is a real chance that the applicant would be persecuted if he returns to the Ukraine in the foreseeable future. It did so upon the basis of extensive independent information available to the RRT on the treatment of Jews in the Ukraine. The RRT came to the following conclusions: (a) while anti-Semitism has had a long history in the Ukraine, the weight of evidence from human rights groups, including specifically Jewish organisations, is that anti-Semitism is decreasing, and more importantly that government action against anti-Semitism is increasing; (b) anti-Semitic acts continue to occur in parts of the Ukraine, but Jewish persons are not systemically persecuted, harassed or targeted in Ukraine by official groups or persons of authority. Manifestations of anti-Semitism which do occur are generally restricted to "less serious" acts, such as verbal abuse. Implementation of protection for Jewish people is "variable", depending on the motivation and circumstances of individual law enforcement officers; (c) it may be the case that acts of random violence by ultra-nationalist youths or simply criminal gangs of the kind to which the applicant has been subjected in the past will occur again. However, the Convention is not directed against the failure of a country to protect its citizens against random criminal behaviour or a failure to act on insufficient evidence; (d) should the applicant face Convention-based persecution, he will be able to avail himself of adequate state protection; and (e) there is not a real chance that the applicant will be persecuted for reasons of his Jewish religion or ethnicity if he returns to the Ukraine within the foreseeable future.