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MIGRATION - Application for review of decision of the Refugee Review Tribunal - whether the Tribunal erred in finding the applicant's fear of persecution was not well-founded.

NAGQ v Minister for Immigration [2002] FMCA 167 (15 August 2002)

NAGQ v Minister for Immigration [2002] FMCA 167 (15 August 2002)
Last Updated: 20 August 2002


[2002] FMCA 167

MIGRATION - Application for review of decision of the Refugee Review Tribunal - whether the Tribunal erred in finding the applicant's fear of persecution was not well-founded.

Migration Act 1958 (Cth) s.36

Judiciary Act 1903 (Cth) s.39B

R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598

R v Murray; Ex parte Proctor (1949) 77 CLR 387

SCAA v MIMIA [2002] FCA 668




File No:

SZ 424 of 2002

Delivered on:

15 August 2002

Delivered at:


Hearing Date:

8 August 2002

Judgment of:

Raphael FM


For the Applicant:

Applicant in person

Solicitors for the Respondent:

Australian Government Solicitor


(1) Application dismissed.

(2) Applicant pay the Respondent's costs in the sum of $2,500.




SZ 424 of 2002








1. The applicant in this matter seeks review of a decision of the Refugee Review Tribunal constituted by L Mojsin handed down on 27 March 2002 affirming a decision of the Minister's delegate not to grant him a protection visa. The application was filed in the Federal Court but was transferred to this court by order of Sackville J. On 3 July 2002 directions were given, including directions that:

1. The applicant file and serve any amended application by

31 July 2002.

2. The applicant file and serve written submissions 5 working days prior to the hearing of the application.

2. Although the applicant had access to the Minister's legal assistance scheme, he did not file either an amended application or any submissions as ordered. The matter proceeded on the basis of the applicant's affidavit and the submissions made by him through his interpreter at the hearing.

3. The applicant is a Ukrainian citizen who arrived in Australia on

2 March 2000. The applicant was immigration-cleared and therefore whilst able to apply for a protection visa (class XA), he did not satisfy clause 785.212 of the Migration Regulations and was therefore not a person to whom the grant of a sub-class 785 (temporary protection) visa could be made. He was entitled to be considered pursuant to the criteria for a class 866 (protection) visa. I make this point because it appears in the section entitled "background" in the Tribunal's decision that the Tribunal may have considered the applicant pursuant to the criteria for sub-class 785.

4. In order to establish his claim for protection the applicant must prove that he is a person to whom Australia owes duties of protection pursuant to s.36(2) of the Migration Act 1958 (Cth). This section incorporates by reference Article 1A(2) of the Refugees Convention which defines a refugee. The definition is subject to ss.91R and 91S of the Migration Act.

5. The applicant claims that his well-founded fear of persecution arises from his membership of the Progressive Socialist Party of Ukraine (PSPU) and his active campaigning against President Kuchma in the presidential elections which took place in the Ukraine in the year 1999. The applicant claimed to have been arrested by the Ukrainian security service and warned that if he did not stop agitating against the present President he would be jailed. The applicant informed the Tribunal that it was quite common for the security service to put dissidents in jail or even murder them. He felt that if he returned to the Ukraine this could happen to him because it happened to others, including journalists, and he was a person who could not resist carrying out further acts of dissidence.

6. The applicant also informed the Tribunal that he believed his son, who was at that time studying at a seminary for members of the Greco-Catholic faith, had been expelled from the seminary because of the applicant's political activities. The Tribunal's reasons indicate that during the course of the hearing the applicant admitted that he was unable to prove that the two matters were directly related.

7. The Tribunal, after making the usual acknowledgments to Nagalingam v MIEA (1992) 38 FCR 191, Randhawa v MILGEA (1994) 52 FCR 437 at 451, Chand v MIEA (unreported, 7 November 1997), MIEA v Guo (1997) 191 CLR 559 at 576 and Kopalapillai v MIMA (1998) 86 FCR 547 at 558-9 considered the applicant's submissions about the danger to his life against observations contained in various sources of country information including the US State Department Report 2000 and the 2000 United Kingdom Home Office Report on Ukraine. Utilising this information the Tribunal came to the conclusion that it did not accept that the applicant had been arrested at the rally in Kiev or released on an undertaking that he would do nothing further. Relying on that finding the Tribunal then came to the conclusion that:

"I have considered whether the applicant is likely to be harmed if he returns to the Ukraine. As I have found the applicant has not been harassed or harmed for a Convention reason in the Ukraine, I am therefore not satisfied that the applicant has a well-founded fear of Convention-based persecution on his return to the Ukraine.


I do not accept there has been serious mistreatment or any concerted or systematic harassment of the applicant for reason of his membership of the PSPU party nor for his attendance at a rally in Kiev in October 1999. I am satisfied that the chance that harm, let alone harm amounting to persecution, will befall the applicant in the reasonably foreseeable future for reasons relating to his political affiliations is remote."

8. When the applicant appeared before me I attempted to explain to him, through his interpreter, the limitations on the powers of the Court pursuant to the Migration Act. I then asked the applicant for his submissions.

9. The applicant claimed that the unfavourable decisions made by the Minister's delegate and the Tribunal came about as a result of the biased view of the Minister's representative and the Tribunal and also as a result of a misunderstanding of the situation in his particular case.

10. The applicant stated that the decision was based upon indirect proof from the reports of foreign media of the situation in the Ukraine. The Tribunal utilised this information to disregard all the applicant's evidence of persecution. He felt it was unreasonable for the Tribunal to rely on this general information which said nothing about his particular problems.

11. The applicant felt particular concern about the findings of the Tribunal from the country information that the police or security services were not interested in low level dissidents but would only be repressive against high profile members of the opposition. The applicant submitted that this was not the true situation at all. The applicant felt that the Tribunal was wrong in its interpretation of the country information and by making that interpretation failed to protect the human rights of the applicant. The applicant asked the court to find that he had been persecuted and retained a well-founded fear of persecution for Convention reasons.

12. Although the application seeks relief under s.39B of the Judiciary Act 1903 (Cth) and though the applicant's submissions suggest a "Hickman" reason for review, namely bias (R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598; R v Murray; Ex parte Proctor (1949) 77 CLR 387), an analysis of the applicant's affidavit and his oral submission would indicate that what he is really seeking is a further merits review. He believes that the matters which he put to both the Minister's delegate and the Tribunal were not given sufficient weight and the Tribunal was wrong to make a finding about his credibility on the basis of country information only. If this was an appeal by way of re-hearing one might indicate concern at the manner by which the finding that the applicant was not arrested or spoken to by the police at the 1999 demonstration was arrived at. But this is not an appeal and the fact that another Court or Tribunal may have come to a different decision is not sufficient to suggest that the Tribunal member in this case was actuated by bias or came to conclusion with a lack of bona fides. As von Doussa J said in SCAA v MIMIA [2002] FCA 668 at [38]:

"Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion."

13. The applicant has not raised any other matters which would entitle him to review under s.39B of the Judiciary Act, even if these were matters that could be considered by the Court consistent with the existence of s.474 of the Migration Act (the privative clause). There is therefore no necessity for this judgment to await the decision of the Full Bench on the nature and extent of that section.

14. I dismiss the application. I order that the applicant pay the respondent's costs which I assess in the sum of $2,500 pursuant to Part 21, rule 21.02(2)(a) of the Federal Magistrates Court Rules, noting that the respondent, although ably represented, was not represented by counsel.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Raphael FM


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