KYRLENKO v Minister for Immigration and Multicultural Affairs

[2001] FCA 653

FEDERAL COURT OF AUSTRALIA

KYRLENKO v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS [2001] FCA 653

VOLODYMYR KYRYLENKO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 51 of 2001

WILCOX J
15 MAY 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N51 of 2001

BETWEEN:	VOLODYMYR KYRYLENKO APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	15 MAY 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondent’s costs of the proceeding.

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	N51 of 2001

BETWEEN:	VOLODYMYR KYRYLENKO APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	WILCOX J
DATE:	15 MAY 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

1. In deciding the claim for review made to it by the applicant, Volodymyr Kyrylenko, the Refugee Review Tribunal accepted that Mr Kyrylenko had been subjected to extortion by criminals, in conjunction with the business he was running in his native Ukraine.  However, the Tribunal did not accept the extortion activity reached the degree of being “persecution” within the meaning of the Convention on Refugees.  Further, the Tribunal was not persuaded the harm suffered by Mr Kyrylenko was on account of his membership of a particular social group, within the meaning of the Convention.  Finally, the Tribunal was not satisfied, on the evidence, that the Government of Ukraine was unwilling, or unable to protect its citizens from conduct such as that of which Mr Kyrylenko complained.  For these reasons, the Tribunal was not satisfied that Mr Kyrylenko fell within the Convention definition of a refugee.  Accordingly, the Tribunal upheld the decision of a delegate of the Minister for Immigration and Multicultural Affairs to refuse a protection visa. 

2. The findings of the Tribunal were all findings of fact.  It is important to note the Tribunal did not dispute the proposition that extortion or criminal activity may, under some circumstances, amount to persecution for a Convention reason.

3. The Tribunal recognised there may be more than one reason for the infliction of harm.  The Tribunal also recognised that the term, "a particular social group", is a wide one.  However, the Tribunal held the group could not be defined by reference only to the fact its members were suffering extortion demands.  Mr Kyrylenko disputes that holding, but the Tribunal’s view is correct in law.  Indeed, insofar as the Tribunal's reasons involve views about the law, it seems to me they are correct. 

4. Mr Kyrylenko put submissions to the Court about the facts of the case.  He stated that he does not agree with the Tribunal's views about the facts.  However, as I pointed out to Mr Kyrylenko, this Court is not able to review the Tribunal's finding of fact. 

5. Mr Kyrylenko drew attention to s 476(1)(g) of the Migration Act 1958 (Cth). That paragraph provides a ground for review by this Court of a decision of the Tribunal that: “there was no evidence or material to justify the making of the decision.” Mr Kyrylenko's contention is that there was no evidence or other material to justify the Tribunal finding he was not a member of a particular social group as claimed.

6. However, s 476(4) of the Act limits the application of s 476(1)(g). That ground is only available in one of two circumstances. The first is in paragraph (a) of s 476(4):

   “the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material from which the person could reasonably be satisfied that the matter was established;”

7. It is clear this is not a case where the Tribunal was required by law to reach a decision only if a particular matter was established, in the sense that the Tribunal was required to hold that Mr Kyrylenko was not a member of a particular social group, only if a particular matter was established.  The Tribunal was in the opposite position of being entitled to grant a protection visa, only if it was positively satisfied of a particular fact, namely membership of a particular social group, and the Tribunal was not satisfied of that fact. 

8. Paragraph (b) of s 476(4) covers a case where:

   “the person who made the decision, based the decision on the existence of a particular fact, and that fact did not exist.

9. That paragraph does not apply because the decision was based upon the non-existence of a particular fact, rather than the existence of some fact. 

10. To put the matter simply, the two cases referred to in subs (4) apply where there is a positive conclusion of fact, but no material to support that finding of fact. In the present case the Tribunal was simply unpersuaded of claimed facts. I do not think subs (4) applies to such a case; accordingly s 476(1)(g) has no application.

11. I have some sympathy with Mr Kyrylenko's position. However, I am not entitled to interfere with the Tribunal's decision unless I can detect some error of law or other error falling within s 476 of the Migration Act.  I can find no error and therefore I must dismiss the application.

12. The orders of the Court are the application is dismissed and the applicant pay the respondent's costs. 

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated:             15 June 2001

The Applicant appeared in person.
Counsel for the Respondent:	D Jordan
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	15 May 2001