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MIGRATION - Review of RRT decision - protection visa - well-founded fear of persecution for reasons of religion - credibility of evidence - whether the Tribunal entered into its task with a lack of bona fides - whether the Tribunal breached an inviolable precondition of the exercise of its jurisdiction -whether this decision is one that is reviewable.

NASK v Minister for Immigration [2003] FMCA 12 (28 January 2003)

NASK v Minister for Immigration [2003] FMCA 12 (28 January 2003)
Last Updated: 30 January 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NASK v MINISTER FOR IMMIGRATION
[2003] FMCA 12



MIGRATION - Review of RRT decision - protection visa - well-founded fear of persecution for reasons of religion - credibility of evidence - whether the Tribunal entered into its task with a lack of bona fides - whether the Tribunal breached an inviolable precondition of the exercise of its jurisdiction -whether this decision is one that is reviewable.



Judiciary Act 1903 (Cth)

Craig v South Australia (1995) 184 CLR 163

NAAV v Minister for Immigration [2002] FCAFC 228

SBBS v Minister for Immigration [2002] FCAFC 361

Applicant:
NASK



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ 944 of 2002



Delivered on:


28 January 2003



Delivered at:


Sydney



Hearing date:


22 January 2003



Judgment of:


Raphael FM



REPRESENTATION

For the Applicant:


Applicant in person



Counsel for the Respondent:


Mr S Lloyd



Solicitors for the Respondent:


Blake Dawson Waldron



ORDERS

(1) Application dismissed.

(2) Applicant to pay respondent's costs in the sum of $4,250.00.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ 944 of 2002

NASK


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENEOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. The applicant is a Ukrainian who arrived in Australia on 25 April 2000 and was immigration cleared. On 26 May 2000 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 30 June 2000 a delegate of the Minister refused to grant a protection visa and on 28 July 2000 the applicant applied for review of that decision by the Refugee Review Tribunal. The Tribunal held a hearing in June 2002. It made its decision to uphold the decision of the delegate on 27 June 2002 and handed that decision down on 23 July 2002. The applicant seeks judicial review of that decision.

2. The application requests review under s.39B of the Judiciary Act 1903 (Cth) ("Judiciary Act") on the grounds that the Tribunal grossly misinterpreted the oral and written submissions of the applicant and failed to consider evidence central to the applicant's case. The application went on to say that:

"In considering the oral and written submissions of the applicant and the evidence that he presented, the RRT made several serious errors which undermined the credibility of the applicant and his ability to put forward a potent application."

3. The errors referred to were the following:

"The Department and the Tribunal made basic but serious mistakes from the time the applicant applied for protection. These mistakes have unfairly undermined the good name and credibility of the applicant.

The Tribunal misinterpreted the applicant'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. This misinterpretation led the RRT to raise doubts over the credibility of the applicant.

The RRT rejected key evidence and written and oral submissions presented by the applicant and offered no sound reason for doing so."

4. When the matter came on for directions before Emmett J his Honour made orders transferring the matter to this court and also that:

"3 The applicant to file and serve any amended application (which takes into account the principles from the Full Federal Court in NAAV v Minister for Immigration [2002] FCAFC 228) and any evidence which he proposes to rely on or before 21 October 2002."

This order and a further order relating to submissions by the applicant were not complied with.

5. In his original application for a protection visa in response to the question "Why did you leave that country" the applicant wrote:

"I left Ukraine because I could not profess my religion there. Moreover for the past several years my business and social activity resulted in accusing me of being "an enemy of the nation" by local authorities. It happened because I revealed facts relating to opposition parties, corruption, dominant influence of Mafia, ecology, pacifism in my articles and at the meetings discussion congresses etc. Due to the above mentioned facts I find it impossible to live and work in Ukraine."

6. In response to another question he refers to his religion being banned by the Government and makes that statement again in response to a third question.

7. When the applicant went before the Tribunal he resiled from his claims concerning religion and stated that he had made this clear to the Minister's delegate. He denied being a member of the White Brotherhood. He based his claim of a well-founded fear of persecution for convention reasons firmly on the activities of the state against him, which arose out of attending the funeral of the Orthodox Patriarch of Ukraine in Kiev in 1995 and reaction to articles which he wrote in the local newspaper for which he worked.

8. The Tribunal commenced the "Findings and Reasons" section of its decision with the following paragraph:

"The Tribunal had very substantial concerns about the applicant's credibility. He was unable to provide convincing detail on a number of key claims, such as his arrest over the burial of the Kiev Patriarch in 1995 which allegedly raised the authorities' suspicion of him initially, and the substance of his alleged investigative reporting. He has given quite different emphasis to aspects of his claims over the period since his protection visa application was lodged and appears to have submitted various documents on an almost random basis including some which have no apparent relevance to his claim."

9. The Tribunal then came to certain conclusions of fact. These were that the applicant did not attend the funeral of the Kiev Patriarch. Because he did not attend the funeral he could not have been arrested. Because he was not arrested he could not have lodged complaints and because he did not lodge complaints he could not have been dismissed from his position because of the manner in which those complaints were dealt with by the authorities. The Tribunal was also sceptical about the applicant's journalistic activity in so far as it involved him in opposition to the authorities and invoking their ire. The Tribunal noted that:

"On the applicant's own evidence, he did not suffer serious harm in the Ukraine at any time after July 1995. He was in regular contact with the authorities but was never arrested, charged or imprisoned. He was not physically mistreated."

10. Whilst it might be possible to question some of the conclusions reached by the Tribunal, it is clear that they have been reached on the basis of a consideration of the evidence and are explained in the reasons for decision. It never has been within the power of a court exercising judicial review to rewrite a Tribunal's decision on the facts. The purpose of judicial review is to provide remedies in respect of decisions reached by improper methods. At its highest, this application could be said to be arguing jurisdictional error of the type found by the High Court in Craig v South Australia (1995) 184 CLR 163.

11. But a Craig error is no longer capable of founding review in a migration matter since the imposition into the act of s.474 (the privative clause) and the decision of the Full Bench of the Federal Court in NAAV v Minister for Immigration [2002] FCAFC 228. As confirmed by Von Doussa J:

"[636] To construe s.474(1) so that it did not have the effect of validating decisions made by extending the authority and powers of decision makers so as to render lawful irregularities that would otherwise constitute jurisdictional error of the Craig type would defeat the clear object of Parliament..."

12. The applicant has not suggested, either in his application or in any oral submissions, that the Tribunal entered into its task with a lack of bona fides nor that the Tribunal breached an inviolable precondition of the exercise of its jurisdiction. These are matters which would have founded review if established. I have examined the reasons for decision in the light of the decision of the Full Bench of the Federal Court in SBBS v Minister for Immigration [2002] FCAFC 361 and in particular [43-48] and I am unable to find anything in those reasons that would constitute bad faith on the part of the Tribunal.

13. It follows that I am unable to find for the applicant in this matter.

I dismiss the application. I order that the applicant pay the respondent's costs which I assess in the sum of $4,250.00 pursuant to Part 21, Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
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