NASK v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 352

FEDERAL COURT OF AUSTRALIA

NASK v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 352

MIGRATION – appeal from decision of Federal Magistrate – where Federal Magistrate dismissed an application for review of decision of the Refugee Review Tribunal affirming decision not to grant protection visa – appeal dismissed

Judiciary Act 1903 (Cth) s 39B Migration Act 1958 (Cth) s 474 Federal Court of Australia Act 1976 (Cth) s 25(1A)

Plaintiff S157/2002 v Commonwealth (2003) 195 ALR 24 cited NASK v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N120 OF 2003 EMMETT J 2 APRIL 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N120 OF 2003

BETWEEN: NASK

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & IDIGENOUS AFFAIRS

RESPONDENT

JUDGE: EMMETT J

DATE OF ORDER: 2 APRIL 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. the appeal be dismissed; 2. the appellant pay the respondent's costs of the appeal. 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 N120 OF 2003

BETWEEN: NASK

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: EMMETT J

DATE: 2 APRIL 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The appellant is a citizen of Ukraine who arrived in Australia on 25 April 2000. On 26 May 2000, he lodged an application under the Migration Act 1958 (Cth) ('the Act') for a protection (class XA) visa. On 30 June 2000, a delegate of the respondent, the Minister for Immigration & Multicultural & Indigenous Affairs ('the Minister'), refused to grant a protection visa and, on 28 July 2000, the appellant applied to the Refugee Review Tribunal ('the Tribunal') for review of the delegate's decision. On 27 June 2002, the Tribunal affirmed the decision not to grant a protection visa. The appellant then applied to this Court for orders under s 39B of the Judiciary Act 1903 (Cth). On 13 September 2002, I ordered that the matter be transferred to the Federal Magistrates Court. 2 On 28 January 2003, after a hearing on 22 January 2003, Raphael FM ordered that the application be dismissed and that the appellant pay the Minister's costs in a specified amount. By Notice of Appeal filed on 14 February 2003, the appellant now appeals to this Court from the whole of the judgment of Raphael FM. The appeal is to be heard and determined by a single judge, the Chief Justice having made a direction under s 25(1A) of the Federal Court of Australia Act 1976 (Cth). The appellant appeared in person and has very little comprehension of English. However, he has been assisted in the course of the hearing before me by an interpreter, Ms Irina Singleman. 3 In his application to the Court, the appellant claimed that the Tribunal 'grossly misinterpreted the oral and written submissions' made by him and failed to consider evidence central to his case. He set out a number of errors. First, he alleged that the Minister's delegate and the Tribunal 'made basic but serious mistakes' which had 'unfairly undermined the good name and credibility' of the appellant. Secondly, he said that the Tribunal misinterpreted the appellant's 'account of events regarding the death of the Patriarch of the Ukrainian Orthodox Church on 18 July 1995 and the ensuing funeral and procession, held in Kiev', that misinterpretation leading the Tribunal to raise doubts over the appellant's credibility. Thirdly, the Tribunal 'rejected key evidence and written and oral submissions presented by the [appellant] and offered no sound reasoning for doing so'. The application contained fairly detailed observations in support of the contention that the Tribunal made those errors. 4 In the Notice of Appeal to this Court from the judgment of Raphael FM, the grounds are stated as follows: 'I would like to appeal the decision of Raphael FM and bring to your attention the mistake made by DIMIA by basing their decision on information hardly relevant to my application for a Protection Visa. In fact, I never based my application on a membership in The White Brotherhood. I repeatedly stated to the DIMIA and the [Tribunal] that I left Ukraine for different reasons (persecution by the Ukraine authorities which resulted from my journalistic activities). For some reason that statement was incorrectly understood as me having changed the evidence, which, in the eyes of DIMIA and the [Tribunal], undermined my credibility as an applicant. All further evidence submitted by me were (sic) treated from this point of view and consequently, although Raphael FM admits that "it is possible to question some of the conclusions reached by the Tribunal", the decision reached by Raphael FM based on information from [the Tribunal] was inevitably biased.'