Kavun v MIMA

Case [2000] FCA 370


FEDERAL COURT OF AUSTRALIA

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

Migration Act 1958 (Cth), subss 476(1)(a), (e), (f) & (g)

Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547, considered

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

  1. 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.

  2. 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).

  3. 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…

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Details
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.

Orders

Orders of the court

1. The application be dismissed.

2. The applicant pay the respondent’s costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

EMMETT J

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Ratio Decidendi

Legal Principle Established

Established by: EMMETT J

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