NARY v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1255

FEDERAL COURT OF AUSTRALIA

NARY v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1255 NARY v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 723 of 2003 MOORE J SYDNEY 6 NOVEMBER 2003

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 723 OF 2003

BETWEEN: NARY

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MOORE J

DATE OF ORDER: 6 NOVEMBER 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant 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 N 723 OF 2003

BETWEEN: NARY

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MOORE J

DATE: 6 NOVEMBER 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT Introduction 1 This is an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") of 23 April 2003 (handed down on 20 May 2003) which affirmed a decision of a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs ("the Minister") to refuse to grant the applicant a Protection (Class XA) visa under the Migration Act 1958 (Cth) ("the Act"). The criterion for the grant of such a visa is, subject to subd AL of Div 3 of the Act, that the applicant is a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees of 28 July 1951 as amended by the Protocol Relating to the Status of Refugees of 31 January 1967 ("the Convention"). 2 The applicant is a citizen of the Ukraine. He arrived in Australia on 25 April 2001 on a visitor's visa. On 17 May 2001 the applicant lodged the visa application with the Department of Immigration & Multicultural & Indigenous Affairs. On 14 November 2001 the delegate of the Minister refused to grant the applicant a protection visa. On 12 December 2001 the applicant applied to the Refugee Review Tribunal ("the Tribunal") for a review of that decision. On 23 April 2003 the Tribunal affirmed the decision not to grant the applicant a protection visa. 3 The applicant's claim was based on what he said was a well founded fear of persecution because of his political opinion flowing from his membership of the Social Democratic Party of Ukraine (United) (Sotsial-Demokratychna Partiya Ukrainy-Obeydnana) ("SDPU(O)"). He claimed to have experienced persecution in the past and claimed the authorities would not protect him if he were to return to the Ukraine. 4 The applicant's account of his experiences was generally as follows. From June 1995 until November 2000, he worked as a soccer trainer in his hometown of Poltava. From November 2000 until April 2001, when he left for Australia, he worked as a sales manager in a business in Poltava. In 1996, he was fired from a pedagogical institute because of his involvement in the SDPU(O). Following the termination of his employment, he established a small trading business, in which he bought bed linen in Moscow and sold it at a small market. 5 In 1998 the applicant began receiving threats concerning his political activities. Some people in plain clothes came to see him at the stadium where he coached and threatened to put him in gaol or make him disappear if he did not stop his political activity. He then received threatening telephone calls. From March 1998 until January 1999 he went to England to study English. The reason he had fled to England was that he had received threats. In February 1999 the applicant returned from England (against the advice of his wife) as he did not wish to remain away from his country, his wife, and their child. 6 In November 2000 during a meeting of the SDPU(O) in Poltava some militia (police) broke into the building where the party was meeting. Party members were told they had no right to use the premises for such a meeting. The police, who were armed with clubs, arrested the applicant and some others and took them to the 'Investigation Isolator' (like a prison for preliminary investigation). They were kept in very cold conditions. The applicant had never been detained before and suffered a great deal. After his release he continued to receive threats, however, these threats were not against him but against his wife and child. They told him that his child who was attending school would disappear. In September 2000 the applicant's wife and child left him and went to live with her parents because of the threats to harm them. 7 The applicant provided the Tribunal with some documents, including his educational records, and various work and character references. He also provided his SDPU(O) party membership card which indicated that he joined the party on 10 August 2000. Amongst the references the applicant provided was a 'Party Reference' signed by the secretary of the SDPU(O) which stated that the applicant worked as a teacher of physical training at the Poltava State Pedagogical Institute. It stated the applicant's duty in the party branch of Kyivskyy district executive committee, Poltava was to organise sport-public work amongst the youth. The applicant also provided a letter he had written himself where he stated his personal qualities and that he liked Australia because he was free here and that he wanted to have a free life. 8 The Tribunal did not accept a number of the applicant's claims. It did not accept that the threats of harm had been made against him as a result of his membership of the SDPU(O), or that he was fired from his employment for this reason. It also did not accept that he had been persecuted by government authorities after he returned from England in 1999, that he was arrested and detained for four days in November 2000 by reason of his involvement in the SDPU(O) or that his wife and child had been threatened. It reached these conclusions having regard to both inconsistencies and anomalies in the applicant's account as well as independent evidence concerning the circumstances in the Ukraine. 9 The application in this Court was filed on 16 June 2003. The application did not identify any grounds of review or grounds for the issue of constitutional writs. It merely stated: A. Details of Claim 1. Review under section 39B Judiciary Act 1903 2. The Refugee Review Tribunal (RRT) refused the application on ground "do not accept that there is a real chance that the applicant will be prevented from carrying on his business, arrested, imprisoned or beaten or otherwise persecuted by reason of his political opinion if he return to Ukraine now or in the reasonable time". 10 At the hearing, the applicant was unrepresented. His principal complaint was that a friend, who had been, or was in, a similar position had been successful in establishing an entitlement to a protection visa. However other than possibly in exceptional circumstances (which are not present here), the fact that the Tribunal has not referred to, relied on or decided a matter consistently with, other decisions of the Tribunal is irrelevant: see Soboleva v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 353, Eloujenko v Minister for Immigration & Multicultural Affairs [2001] FCA 980andVassilieva v Minister for Immigration & Multicultural Affairs [2001] FCA 733. 11 I have read the reasons for decision of the Tribunal. It is not apparent to me that the Tribunal has fallen into jurisdictional error which might justify the relief apparently sought by the applicant. Accordingly the application should be dismissed with costs. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.