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.' 5 In the course of the oral hearing of the appeal, the appellant submitted that the Tribunal did not pay attention to important facts that humiliated him as a human being. He referred to assertions that he had been stopped from leading an ordinary life. He claimed that the Tribunal did not fully accept the assertions made by him that he could not lead a normal life because of constant problems with the government or security officers. 6 There appear to be two broad questions raised by the appellant on the appeal. The first concerns the treatment of claims relating to 'the White Brotherhood'. The second might be characterised as an assertion of failure on the part of the Tribunal to consider the merits of the appellant's case. I shall deal with each separately. THE WHITE BROTHERHOOD 7 The matter in respect of which the White Brotherhood was raised is not entirely clear from the material to which I have been taken. There is no reference to such an organisation in the appellant's application for a protection visa. In that application, dated 26 May 2000, the appellant stated that the reason for his leaving the Ukraine was 'because I could not profess my religion there. Moreover, for the past several years my business and social activity (sic) resulted in accusing me of "being an enemy of the nation" by local authorities. … Due to the above mentioned facts, I find it impossible to live and work in Ukraine'. 8 In response to the question in the application 'What do you fear may happen to you if you go back to that country?', the appellant said: 'I find my living and working conditions in the Ukraine unsecure (sic) from political, financial, and social, point of view.' 9 In response to the question in the application 'Why do you think they will harm/mistreat if you go back?', the appellant said: 'My articles about corruption, ecology, etc, caused strong hatred towards me from the local authorities. I supported young people who refused to be on the military service. I joined the opposition party and Green Party of Ukraine. My activity was against the former government who kept their power after the recent elections. My religion is banned by the government, I am not allowed to have my own religious beliefs. The government chases us, threatens, puts in jail, or murders.' 10 In response to the question whether he thought the authorities of the Ukraine could and would protect him if he went back and, if not, why not, the appellant said: 'By no means I will look for a protection from any authorities. I support the opposition. I am against war and military service. I accused local authorities of connections with mafia as well as causing damage to nature. There is no chance to find any help or protection in my country from legal authorities because government, police, and military authorities are closely related to each other and supported by mafia. Corruption has expanded to higher level of the government. I used to reveal these facts quite often during the meetings, congresses, discussions and my publications. Moreover, my religion is banned by the government. Other legal religious organisations do not recognise us. We are subject to constant humiliation, stalking, threats, physical abuse, etc.' 11 In a written statement lodged in support of his application for a protection visa, the appellant included the following: 'I found my interest in Christianity since I was a teenager and was baptized in the Ukrainian Orthodox Church. At that time I did not realise that it would be harmful for my family. In Ukraine there is a majority of orthodox believers. However, currently there are three orthodox churches that do not recognise each other canonically and are fighting for being the leading one. This fight is resulted in extreme aggressive propaganda, capture of temples and cruel clashes. My intentions have always been to pray for the God following the traditional customs because I understand I am entitled for the freedom of conscience as it is recognized worldwide. However, in Ukraine government authorities sometimes interfere with the inter-church conflicts. As a result of that the believers of certain churches become victims of militia's tyranny as it had been in ex-Soviet period. On 18 July 1995 I participated in one of the peaceful Christian ceremonies, burial of Vladimir (Romanuk), Patriarch of the Ukrainian Orthodox Church on the Sofia Square in Kiev. The funeral procession was attacked by the special MVD's unit 'Berkut'. … The soldiers of 'Berkut' were cruelly bashing the priests and believers most of them were old aged men and women. We were knocked down by the rubber truncheons, dragged along the pavement as if we were corpses or logs. Then we were thrown into the vans. I was brutally bashed, badly injured and wounded. Later on I found out that two of the victims died in the hospital.' 12 The first reference to the White Brotherhood appears in the decision record of the Minister's delegate. In a section headed 'Summary of Claims (details on folios 25 to 28)', the delegate records the following: '3.2.1. The applicant is a (sic) Ukrainian national. After serving in the military, he became resentful of its compulsory nature. He found the law on alternative service as discriminatory as it did not cover adherents of non-registered religious groups. He later on became a member of the White Brotherhood. He experienced the government's suppression of this religious sect." Under the heading 'Reasons', the following appears: '3.4.1 I do not accept that the applicant was a member of the white brotherhood. This sect had doctrines different from believed by the orthodox churches. The applicant stated that he joined the funeral of the patriarch of the Ukraine orthodox church.' 13 The reference to 'folios 25 to 28' in the decision record appears to be a reference to the appellant's written statement lodged in support of his application (see at [11] above). As stated previously, there is no reference in that document to the White Brotherhood. It appears that the White Brotherhood was first raised in an interview between the Minister's delegate and the appellant on 20 June 2000. However, there was no evidence before the Court of any record of interview between the Minister's delegate and the appellant. 14 In his application to the Tribunal for review of the delegate's decision the appellant included a paragraph as follows: 'I am a Christian, but my religion does not prevent me from having an interest in White Brotherhood. I do not deny the fact of being the believer of this sect. I disagree with the statement 3.4.1 about the radical differences in the doctrines between Orthodox Church and White Brotherhood. In White Brotherhood's doctrines there are some deviations from the Orthodox Church religion but the doctrines are definitely not radically different. Both in my autobiography and at the interview I told about being at Patriarch's funeral as a freelance journalist and as a Christian believer.' 15 On 22 April 2002, the appellant wrote to the Tribunal in response to its invitation dated 5 April 2002 to attend a hearing. The letter of 22 April 2002 includes the following: 'In section 3.4.1 of protection visa decision record, DIMIA officer … mention that he "do not accept that the applicant was a member of the White Brotherhood". Its not surprise because on interview I explain that I am not a member of White Brotherhood[.] I am a Christian but my religion does not prevent me from having an interest in the White Brotherhood.' 16 The Tribunal, in its reasons, referred to that letter and the statement by the appellant that he had explained to the departmental officer that he is not a member of the White Brotherhood but that he has an interest in the White Brotherhood. The Tribunal, in its reasons, recorded that the appellant was asked whether he had ever been a member of the White Brotherhood. The appellant said that, on an occasion in 1991, he had been on the main street of Kiev, doing practical work for his degree, when he saw a group of people whose leaders said to those within reach 'You are all brothers and sisters in the White Brotherhood'. He said that he felt he was part of it and confirmed that he had never been baptised. 17 In the sections of its reasons headed 'Findings and Reasons', the Tribunal recorded that it had very substantial concerns about the appellant's credibility. Specifically, the Tribunal referred to fact that the appellant was unable to provide convincing detail on a number of key claims, such as his arrest over the burial of the Patriarch in 1995 and the substance of his alleged investigative reporting. 18 The Tribunal then went on to explain in some detail the reasons why the appellant's evidence and assertions on those topics were regarded as unconvincing. The reasons do not base that conclusion on any assertions made concerning membership of the White Brotherhood. 19 In the light of that material, I am not persuaded that there was any error on the part of the Tribunal in relation to its treatment of the material relating to the White Brotherhood, putting to one side the question of whether or not any such error would have given rise to any entitlement to relief. I do not consider that the reasons of the Tribunal indicate that any misunderstanding concerning the appellant's relationship with the White Brotherhood undermined his credibility with the Tribunal. FAILURE TO CONSIDER MERITS 20 The Tribunal gave detailed reasons for its conclusion. The reasons of the Tribunal included a section headed 'Claims and Evidence' in which the Tribunal summarised the appellant's assertions as to the circumstances that he alleged give rise to a fear of persecution for Convention reasons. 21 The Tribunal's reasons indicate that the appellant was questioned on a number of topics. Concerns that the Tribunal had with his claims were raised and put to him. In a number of instances the reasons record that the appellant was asked to explain what he meant by certain of his assertions. 22 The Tribunal did not accept that the appellant had been involved in the riot at Saint Sophia in Kiev in July 1995, nor that he was arrested and detained for that reason. The Tribunal accepted that the appellant had been involved in some reporting work on a local newspaper from the end of 1996, but the Tribunal considered that it was relevant that the appellant was unable to produce any convincing evidence that he had had any controversial articles published or, if they were, they were edited to an acceptable stage. Indeed, he said to the Tribunal that no controversial articles were ever published. The Tribunal concluded that the appellant did not appear to have been interested in politics and that, while he claimed to have been active on behalf of the opposition in March 1998, he conceded to the Tribunal that he did not do anything other than vote. 23 The Tribunal also characterised as being highly implausible the appellant's account of events concerning alleged attempts to accuse the local mayor of corruption. In any event, the Tribunal recorded that, according to the appellant's own account of the matter, apart from being thrown out of the mayor's office, no further action appears to have been taken. 24 The Tribunal considered that the appellant's own evidence demonstrated that he did not suffer serious harm in the Ukraine at any time after July 1995, that he was in regular contact with the authorities but was never arrested, charged, or imprisoned, and that he was not physically mistreated. The Tribunal explained its reason for concluding that the authorities were not adversely interested in the appellant at the time he left the Ukraine and that nothing had happened in the intervening period to suggest that they might be interested in him if he returned to the Ukraine in the foreseeable future. 25 I do not consider that the complaint that the Tribunal failed to consider the merits of the appellant's application is made out. The appellant may well feel a sense of grievance that his claims were not accepted by the tribunal. That, however, is not a matter that this Court could take into account, except in very limited circumstances. So long as the decision of the Tribunal can properly be characterised as a decision of an administrative character made under the Act, the effect of s 474(1) of the Act is that the decision is final and conclusive and must not be challenged, appealed against, reviewed, quashed or called in question in any court and is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account. 26 Notwithstanding that provision, the decision nevertheless would be subject to review if it were not a bona fide attempt to exercise power or did not relate to the subject matter of the Act or was not reasonably capable of reference to the power given to the Tribunal. The material does not support any suggestion that the Tribunal did not make a bona fide attempt to exercise its power. Further, the decision clearly related to the subject matter of the Act and was reasonably capable of reference to the power given to the Tribunal since that is precisely what is required by Pt VII of the Act. A decision will not be a decision made under the Act if it involved a failure to exercise jurisdiction or an excess of jurisdiction: see Plaintiff S157/2002 v Commonwealth (2003) 195 ALR 24. I would not characterise the complaints made by the appellant, even if they were established, as giving rise to any jurisdictional error on the part of the Tribunal. In any event, I am not persuaded that there has been any error on the part of the Tribunal. For those reasons, I am not persuaded that Raphael FM came to a wrong decision. It follows that the appeal should be dismissed with costs. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate: Dated: 22 April 2003 Counsel for the Applicant: The applicant appeared in person with the assistance of an interpreter Counsel for the Respondent: M N Allars Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 2 April 2003 Date of Judgment: 2 April 2003