Kavun v Minister for Immigration & Multicultural Affairs [2000] FCA 370
MIGRATION – protection visa – application for review of a decision of Refugee Review Tribunal (‘the Tribunal’) refusing grant – whether procedures required by the Migration Act 1958 (Cth) to be observed in connection with the making of the decision were observed
OLEKSANDR KAVUN v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
N 1367 OF 1999
EMMETT J 22 MARCH 2000 SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 1367 OF 1999
BETWEEN:
OLEKSANDR KAVUN APPLICANT
AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:
EMMETT J
DATE OF ORDER:
22 MARCH 2000
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 1367 OF 1999
BETWEEN:
OLEKSANDR KAVUN APPLICANT
AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:
EMMETT J
DATE:
22 MARCH 2000
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The applicant is a citizen of the Ukraine. He deserted his ship in Australia in April 1997 and applied for a protection visa on 17 April 1997. On 27 May 1997 a delegate of the Minister for Immigration and Multicultural Affairs refused the application for a protection visa. The applicant sought review of that decision by the Refugee Review Tribunal (‘the Tribunal’). On 4 November 1999 the Tribunal affirmed the decision not to grant a protection visa. On 23 November 1999 the applicant filed an application for an order of review of the decision of the Tribunal.
When the matter was called on for hearing this morning the applicant filed an amended application without opposition from the Minister. The grounds stated in the amended application are as follows:
1.Procedures that were required by the Act to be observed in connection of the making of the Decision were not observed (s. 476(1)(a)).
2.The Decision involved an error of law, being an error involving the incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the Tribunal, or both (s. 476(1)(e) of the Act).
Particulars
The finding by the Tribunal that the documents produced in support of his claims were fabricated for the purposes of supporting his application for a protection visa was not reasonably open to it on the evidence.
3. The Decision was affected by actual bias (s. 476(1)(f) of the Act).
4.There was no evidence or other material to justify the making of the Decision (s. 476(1)(g) of the Act).
The applicant appeared in person before me. He does not speak English and was assisted by Mr Benjamin Perkis who translated the proceedings into the Russian…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Kavun v MIMA [2000] FCA 370
Case
[2000] FCA 370
Decision Date
CaseChat Overview and Summary
Kavun was the appellant and the Minister for Immigration and Multicultural Affairs was the respondent in this case before the Federal Court of Australia. The dispute was an appeal against a decision of the Refugee Review Tribunal, which had determined that the appellant was not a refugee, and therefore did not qualify for a protection visa. The appellant contended that the Tribunal had erred in its assessment of his refugee status and the associated factual findings.
The court was required to consider whether the Tribunal had erred in its determination of the appellant’s refugee status. Specifically, it was necessary to determine whether the Tribunal had made errors in its assessment of the evidence, and if those errors were material enough to affect the outcome of the appeal. This required an examination of the evidence presented, and the Tribunal’s reasoning in arriving at its conclusions.
The court found that the Tribunal had not erred in its assessment of the evidence, nor in its conclusions regarding the appellant’s refugee status. The reasoning of the Tribunal was sound, and the evidence did not support a finding that the appellant was a refugee. The court held that the appeal should be dismissed, and the appellant was not entitled to a protection visa. The court also ordered that the appellant pay the respondent’s costs.