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: "I believe the extracts [set out in his submission] and the articles from which they were taken show beyond any doubt that there is a major human rights problem developing in the Ukraine against Russians. Given the infamous capacity of the Ukrainian people to commit mass acts of barbarism, [the applicant] fears for the safety of his family and himself and not without cause." 7 The applicant's adviser conveyed the alleged text of a newspaper interview with the "Chairman of the State Committee for Information Policy, Television and Radio Broadcasting" and alleged that that person had "made thinly veiled anti-Semitic and anti-Russian comments while discussing recent measures to promote the use of the Ukrainian language." Part of the material from the interview included: "The Jews are always aware of support from Israel and the USA. Who can the poor Ukrainian minority in Ukraine turn to? The problem is that Ukrainians have really begun to feel as an ethnic minority in their own country. If this tendency gets any worse, we'll be in store for a great social upheaval. It will be caused by the improper evaluation of powers and influence possessed by the core ethnic group in Ukraine. This is my personal point of view. Hopefully, [President] Leonid Kuchma, [Parliamentary Speaker] Ivan Plyushch and [Prime Minister] Viktor Yushchenko will support me in my initiatives, and will do our best to regain the information field and make it Ukrainian." The adviser continued: "The articles above are translations from articles published in Ukrainian and Russian newspapers and clearly illustrate the deep hatred of Russians in the Ukraine, [particularly] in [the applicant's] hometown of Lviv. Case Officer Dobrijevic's appraisal of our original claim was based on heavily outdated sources. The articles above are extremely recent and show that the situation in the Ukraine is now intolerable for [the applicant] and his family." 8 It is, as the Tribunal Member indicated, within the knowledge of every reasonably well-educated citizen that in the Ukraine there was horrific racial barbarism at the time of the Second World War. It is equally, it seems to me, uncontroversial that, in general, Russian domination of the former Republics of the USSR was often less than gentle and often racist. Likewise, it is a commonplace that, now that those republics are self-determining, a good many of their citizens, whatever the virtues of doctrine officially propounded at the highest formal levels of the states concerned, are in the process of returning at least as good as they got in trying to redress what they have seen as unacceptable levels of cultural imperialism in their countries. 9 Despite the fact that the Tribunal Member has a background, as he informed the applicant, of speaking Russian, the material to which he has referred in his own reasons barely addresses what, as I would understand it, the applicant was really complaining about. This is that, in some way, the applicant is identified in Lviv, formerly known as Lvov, where he has lived for many years, as evidently Russian; that Lviv is a centre of Ukrainian nationalism; that, in practice, in consequence of that, it is also a centre of anti-Russian sentiment and that he and his family have suffered harm from others against which the Ukrainian state is likely to be unable or unwilling to relieve him, whatever pieties are uttered, and whether sincerely or not, by the highest leadership of the country. Such a claim invites attention to the real facts of life in the Ukraine, to what a proportion of ordinary people will do and to how much relief can be had from an apparently corrupt state apparatus (possibly including in its judicial spheres). 10 A few months before the applicant left Ukraine, there was a very disturbing incident in Lviv. A popular ethnic Ukrainian local folk singer was murdered. The event was described in "The Guardian", the UK newspaper, as follows: "Lviv's language war was ignited by the death of a popular local folk-singer, Igor Bilozir. At an outdoor café one evening in May, he and a friend were playing his Ukrainian ballads while a group of Russian youths at the next table were singing songs in Russian. The Russians warned Bilozir to stop singing in Ukrainian. He refused. They came to blows. The fighting spilled along the street and the 45-year-old slumped to the ground after a blow to the head. He died three weeks later in hospital, becoming for Ukrainian nationalists an instant martyr. 'He was killed because he sang songs in his own language,' says Mr Parubi. Russian newspapers turned things around and said the dispute was over the right to use the Russian language. More than 100,000 people in Lviv turned out for Bilozir's funeral. The next day the Patriots of Ukraine went on the rampage. Two ethnic Russian youths were arrested on suspicion of murder. One was released inexplicably on bail and left the country, the other is the son of the local deputy police chief. Expectations of a fair trial are low. A black cross, flowers and a picture of the songwriter mark the spot where he died. 'Igor Bilozir. Murdered here by Russian-speaking thugs,' reads the inscription across the road from the local McDonald's." 11 In the light of this, it is a matter of concern that the Tribunal Member could say merely that: "The country information consulted by the Tribunal makes no reference to people being discriminated against merely because they speak Russian. I note from the country information that Russians comprise some 22 percent of the Ukrainian population, that the free use of the Russian language is guaranteed in the Constitution and various laws, that there are over 2,000 Russian schools, that President Kuchma has taken a strong public stance against xenophobia and that there is no evidence of serious Russian-Ukrainian tension. I have had regard to the media articles submitted by the adviser about anti-Russian tensions and vandalism in Lviv; however, I note that this followed the murder by ethnic Russians of a local Ukrainian composer in Lviv and that the information provided by the adviser does not state that this was in any sense a generalised incident." 12 It was a further matter of concern that he said, "There is no evidence of serious Russian-Ukrainian tension." Were that statement not followed by the next quoted paragraph, I should have thought that arguably a jurisdictional error was thereby committed by the Tribunal Member. 13 However, reading the Tribunal Member's reasons as a whole, it appears that there was evidence from the UK Home Office that: "… while there have been claims of discrimination against Russians in Ukraine, there is no evidence of serious Russian-Ukrainian ethnic tension." What I think the Tribunal Member was saying in the quoted paragraphs is that, while there might well be Russian-Ukrainian tensions and occasional incidents such as the murder of the singer, the picture falls short of showing likely persecution of people identified as Russians. 14 In a case such as this, any possible shortcoming by the Tribunal fall for qualitative assessment. I assume that, in relation to the Migration Act 1958 (Cth) ("the Act") as it presently stands, and after the authoritative interpretation of s 474 furnished by Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 and Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 195 ALR 1in the High Court, the proposition (taken from a suggestion by Gummow J) that a review must be "proper, genuine and realistic", applied by a Full Court of this Court in Flentjar v Repatriation Commission (1997) 48 ALD 1 to a review by the AAT, is applicable to reviews by the Refugee Review Tribunal. That, I assume, is so notwithstanding the difficulties that the Act,in a former state, provided for the maintenance of that doctrine, which were exposed in Minister for Immigration & Multicultural Affairs v Anthonypillai (2001) 106 FCR 426. There will be unusual cases where unease of the present kinds, but sharper in degree and more compelling in overall effect, will result in the Court finding that there has been only a seeming and not an actual exercise of jurisdiction; that is to say that there has been a constructive failure to exercise the jurisdiction. 15 Although I have referred to some misgivings, they do not, in my opinion, reach the threshold of establishing a jurisdictional error in the present case. Consequently, there is no relief the Court can give. 16 The application is dismissed with costs. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick. Associate: Dated: 8 April 2003 Counsel for the Applicant: Solicitor for the Applicant: Counsel for the Respondent: Solicitor for the Respondent: Date of Hearing: 21 March 2003 Date of Judgment: 21 March 2003