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MIGRATION - Review of Refugee Review Tribunal decision affirming a delegate's refusal of a protection visa - applicant an adherent of the "White Brotherhood" religion in Ukraine - whether the RRT decision inconsistent with earlier RRT decisions on similar facts - no reviewable error found.

NAQA v Minister for Immigration [2002] FMCA 362 (20 November 2002)

NAQA v Minister for Immigration [2002] FMCA 362 (20 November 2002)
Last Updated: 3 February 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAQA v MINISTER FOR IMMIGRATION
[2002] FMCA 362



MIGRATION - Review of Refugee Review Tribunal decision affirming a delegate's refusal of a protection visa - applicant an adherent of the "White Brotherhood" religion in Ukraine - whether the RRT decision inconsistent with earlier RRT decisions on similar facts - no reviewable error found.



Applicant:
NAQA



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ854 of 2002



Delivered on:


20 November 2002



Delivered at:


Sydney



Hearing Date:


20 November 2002



Judgment of:


Driver FM



REPRESENTATION

Applicant appeared in person


(Assisted by Mr Ryvchin, Migration Agent, by leave)



Counsel for the Respondent:


Mr M Wigney



Solicitors for the Respondent:


Clayton Utz



ORDERS

(1) The application is dismissed.

(2) The applicant is to pay the respondent's costs and disbursements of and incidental to the application, fixed at $4,000.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ854 of 2002

NAQA


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
(Revised from transcript)

1. This ex tempore judgment relates to an application to review a decision of the Refuge Review Tribunal ("the RRT") made on 13 June 2002 and handed down on 4 July 2002. The decision of the RRT was to affirm a decision of the delegate of the respondent Minister to refuse to grant to the applicant a protection visa. The applicant, in his application filed on 30 July 2002, raises four grounds of challenge to the decision of the RRT.

2. The first of these is that the RRT grossly misinterpreted oral and written submissions of the applicant concerning his membership and adherence to the White Brotherhood faith in Ukraine. The second is that the RRT placed an unfair standard of proof on the applicant which hindered his ability to submit evidence in support of his claims, in particular, relating to the extent of injuries he suffered in connection with government suppression of the White Brotherhood religion.

3. Thirdly, the RRT is said to have rejected the applicant's submissions that his close friend and colleague was killed for uncovering evidence of widespread government corruption. The applicant asserts that the grounds upon which the RRT rejected the submissions were suspect. This assertion relates to the applicant's alleged activities as an investigative journalist in Ukraine. Lastly, the applicant asserts that the RRT failed to appreciate the applicant's investigative activities which led to threats against the applicant and his family in Ukraine.

4. The general background facts and circumstances concerning this application are set out accurately in written submissions prepared on behalf of the respondent Minister in paragraphs 1, 2 and 3 of those written submissions. I adopt as accurate for the purposes of this decision and reasons that statement of background facts and circumstances.

5. The RRT in its decision accepted some assertions made by the applicant in relation to his adherence to the White Brotherhood religion in Ukraine. The RRT accepted that the applicant had been the subject of detention and physical mistreatment because of his adherence to the religion. However, the RRT did not accept that the applicant had suffered harm by reason of his religion since 1994 and found that he had lost interest in the religion since then. The RRT found that the applicant would not take up the practice of his religion again in Ukraine if he returned to Ukraine.

6. Significantly, the RRT found that even if the applicant did practise his religion if he returned to Ukraine, there was no indication in the independent country information before the RRT that rank and file followers of the White Brotherhood are persecuted in Ukraine now (court book, page 125). The applicant was not able to persuade the RRT that his journalistic and political activities in Ukraine exposed him to risk. The applicant was not able to present evidence that he had been persecuted personally by reason of those activities, although he did point to the murder of a friend who was a journalist.

7. The RRT found that the applicant's activities were at a very low level and that he was not a person of a sufficiently high profile to merit the adverse attention of the Ukrainian authorities if he returned.

8. As I have explained to the applicant in the course of today's proceedings, grounds 1, 3 and 4 of his application amount to an invitation to me to review the merits of the RRT decision. The applicant asserts that the decision of the RRT was against the weight of the evidence. The applicant also asserts that the RRT reached wrong conclusions on the facts presented to it. However, this Court is not able to review the merits of the RRT decision. It is the job of the RRT to assess the facts presented to it and to reach conclusions in the exercise of discretion. In my view, the decision and reasons of the RRT and the other material in the court book establishes that there was properly before the RRT material on which its conclusions were based concerning the risk of persecution suffered or which could be suffered by the applicant.

9. Today the applicant was assisted by Mr Ryvchin, by leave. Mr Ryvchin is a migration agent. Through him the applicant presented a letter which was filed in court in which he drew attention to two other cases decided by the same presiding member as in this case in which the applicants were successful. One of those decisions was presented to me. The decision bears the RRT reference N0036256 and the decision was made on 15 July 2002. I am satisfied that the decision was made by the same presiding member as in the case before the Court today.

10. It is apparent from the record of the other decision that the applicant was successful and that the presiding member was satisfied that the applicant may well suffer persecution should she return to Ukraine by reason of her adherence to the White Brotherhood religion. A difference between that case and the case I have before me is that the RRT was satisfied that the applicant in the other case remained committed to her religious beliefs and would actively profess those beliefs should she return to Ukraine.

11. In contrast, in the case presently under review the RRT was not so satisfied. There are some apparent inconsistencies between the two decisions in the treatment of country information relating to the question of whether rank and file adherants to the White Brotherhood religion face a risk of mistreatment by Ukrainian authorities in Ukraine today. That apparent inconsistency is a matter of concern in the assessment of the merits of the decision. However, mere inconsistency of decision making is not a ground of review at law.

12. It is a matter that the applicant could take up with the Minister and his Department should he wish to. The applicant, in his written submissions, asserts that the inconsistency in decision making is indicative of bias. Mr Ryvchin, in his oral submissions, preferred to label it merely as a troubling inconsistency. I am not persuaded that this inconsistency in decision making is indicative of bias. There is nothing to indicate that the presiding member intended to reach a decision adverse to the applicant in circumstances where objectively she should reach a decision favourable to him.

13. The applicant also asserts that he was discriminated against because he is a man, noting that the other two decisions apparently involved women. I am not persuaded that any such discrimination is in any way indicated by the material presented to me.

14. The other issue raised by the applicant concerns the standard of proof applied by the RRT. The applicant, in substance, asserts that he should have been given the benefit of the doubt. It is apparent, however, from the reasons of the RRT that the applicant was given the benefit of the doubt in respect of his assertions about mistreatment in 1993/1994 because of his religion (court book, pages 124-125).

15. The assertions made by the applicant about his journalistic and political activities were not accepted by the RRT, or the RRT was not prepared to draw the conclusions from the asserted facts that the applicant sought. The RRT does not have to uncritically accept whatever an applicant chooses to put before it. While applicants in finally balanced cases are entitled to the benefit of the doubt, the RRT is entitled to make assessments of credibility and to draw logical conclusions from accepted facts.

16. In my view, the conclusions on credibility and the conclusions on accepted facts drawn by the RRT in this case were reasonably open to it on the material before it. In the circumstances, I find that no error of law has been demonstrated by the applicant.

17. It has not been necessary for me to consider the application of the privative clause to this case. However, for completeness I add that the operation of the privative clause would obviously put beyond doubt the question of whether any reviewable error has been demonstrated by the applicant. The decision of the RRT was a bona fide attempt to exercise its powers. The decision clearly related to the subject matter of the legislation and was reasonably capable of reference to the power conferred on the RRT. No breach of an inviolable limitation on the decision making power of the RRT has been established.

18. Accordingly, I dismiss the application.

19. Mr Wigney, for the respondent, has requested an order for costs. I am satisfied that there is no reason to depart from the general principle that costs follow the event. I will make an order for costs in accordance with my usual practice in migration cases of this nature. I will fix the amount of costs and disbursements which are payable. A significant amount of preparation has been necessary in terms of the preparation of the court book and the preparation of written submissions. The Minister was reasonable entitled to be represented by an advocate in the proceedings before me today. In the circumstances, I am satisfied that an award of costs in the sum of $4,000 would be reasonable.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 30 January 2003
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