NAHY v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 319

FEDERAL COURT OF AUSTRALIA

NAHY v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 319 Minister for Immigration & Multicultural Affairs v Anthonypillai (2001) 106 FCR 426, discussed NAHY v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N21 of 2003 MADGWICK J 21 MARCH 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N21 OF 2003

BETWEEN: NAHY

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MADGWICK J

DATE OF ORDER: 21 MARCH 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant is 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 N21 OF 2003

BETWEEN: NAHY

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MADGWICK J

DATE: 21 MARCH 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT (revised from transcript) MADGWICK J: 1 This is an application for judicial review under s 39B of the Judiciary Act 1903 (Cth) of a decision of the Refugee Review Tribunal ("the Tribunal") which in turn affirmed an adverse decision of a delegate of the respondent Minister in respect of the applicant's application for a protection visa. He is a citizen of Ukraine who arrived in Australia on 26 August 2000, and within three weeks had lodged an application for a protection (class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs. 2 The grounds in the application refer entirely to factual matters. The applicant in his oral submissions to the Court, again, was only able to refer to factual matters, despite my having done my best to try to explain the existing state of the law to him as to the circumstances in which this Court can interfere with a decision of the Tribunal. Thus, his case does not appear promising. However, it has a number of worrying aspects. 3 In the first place, the applicant was apparently originally advised to emphasise potential religious persecution. He adheres, though without extreme passion, to what would generally be called the Russian Orthodox religion, and in particular to a large organised church in the Ukraine propagating a variety of that religion. He provided the Tribunal with references from his Australian employer and his Australian landlord which speak, respectively, of his "reliability, honesty and trustworthiness," and of his being "of excellent character and trustworthy". 4 In the hearing before the Tribunal, the applicant candidly indicated that there had been religious liberalisation recently in Ukraine and he really was not concerned about religious persecution or discrimination. The applicant also said that although he is religious, he is not sufficiently so as to feel it appropriate to give evidence on oath rather than on affirmation. 5 A migration agent represented him before the Tribunal. However, as is not uncommon in these cases, while material of a general kind that might have assisted the applicant was put forward, much material of a personal nature that might have assisted him was not. In such cases, there is always a risk that the failure, before the hearing, to put forward material about which the applicant is really concerned, might very well not, if all the circumstances were known, reflect adversely on the credit of the applicant. One can say no more, of course. It may adversely so reflect. Like other judges of this Court, I have now seen dozens of these cases, and overall, the number in which non-legally qualified migration agents actually assist the case of the applicant is so small, that it might reasonably be doubted whether anything much is to be gained by continuing to permit their participation. 6 The next matter of concern is that, although the migration agent put before the Tribunal material that invited attention to broad factors in Ukrainian society and history that might bear upon the applicant's claims, there was no real discussion by the Tribunal of that relevant history or those general societal factors. I do not mean, of course, that an historical or sociological treatise is to be essayed in every case, or any. The Tribunal should be credited with likely having some general knowledge of the country of which the applicant is a citizen (by reason of the Tribunal's practice of assigning members to consider particular countries or groups of countries for significant periods of time). However, when none of the Tribunal Members' understanding of the relevant matters within such knowledge is set out in its reasons, and the Court is invited to review the decision by reference to those reasons, it seems to me that the Court is cast in the position of needing to look to what might be called the non-controversial knowledge about a country that an interested general reader might readily acquire. Thus, for example, the adviser said: