NAFL v MIMIA

[2004] HCATrans 506

[2004] HCATrans 506

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S634 of 2003

B e t w e e n -

NAFL

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 30 NOVEMBER 2004, AT 2.26 PM

Copyright in the High Court of Australia

NAFL appeared in person.

MR R.J. BROMWICH:   May it please the Court, I appear for the respondent.  (instructed by Clayton Utz)

HAYNE J:   I understand you require an interpreter.  Is that right?

THE INTERPRETER:   That is right.

HAYNE J:   Perhaps if you would swear the interpreter.

VIKTORIYA GOGINA, sworn as interpreter:

HAYNE J:   Now, sir, we have read the papers in your case and you have an opportunity now to speak to us in support of your application.  Is there anything that you want to say to us, other than what appears in the written papers?

NAFL (through interpreter):   Yes, I would like to say a few things.

HAYNE J:   Perhaps if you would come and if you, Madam Interpreter, would stand with him at the lectern, we can then hear what he has to say.  Yes, go ahead.

NAFL (through interpreter):   You know, it will be pretty difficult, not even difficult but pretty complicated for me to defend my own case because I do not have a special legal education, but I will try to do my best and I will try to use any chance just to do so.

HAYNE J:   Yes.

NAFL (through interpreter):   You know, everything I am going to say now actually it concerns the Tribunal decision.  You know, I have read very, very carefully the reasons for the decision of the Tribunal once again, and while reading the reasons for the decision, I started to have some questions and I would like to raise these questions now with you.

You know, it seems to me I think that there are some arguable points, arguable issues in the reasons of the Tribunal.  First of all, I would like to draw your attention to the fact that at the Tribunal, I let the member of the Tribunal know that there were three assaults made on me when I was in Ukraine.  But the first one took place in 1997, the second one in 1998 and the last one, the third one took place in year 2000. 

Actually, you notice the Tribunal took into account that the first attempt, the first assault really took place so they accepted this claim, that I was assaulted in year 1997.  Then they did not accept the second one and their explanations were as follows.  They thought that the motivations were not the same and this assault was made just by the criminals.

And you know, as for the third assault, the Tribunal decided that it was fabricated by me, that the facts were fabricated by me just in order to exaggerate and in order to be able to get the refugee status.  And you know, actually the evidence from my side they were exactly the same for three incidents, for three assaults.  Actually, my question is why the Tribunal accepted the first one and they accepted the motivation for the first assault that it was because I was of Jewish nationality, because of my nationality.  Then the second one they accepted but they decided that it was done by the criminals and the third one, they thought that it was just fabricated.  How is it possible?

And actually, after the Tribunal I was given some time, it seems to me it was a few weeks, and during this time I was able to provide some additional information relevant to the situation of my country according to the anti-Semitic movement and actually provided this kind of information that was required.  Most of all, they were some clips from the articles of the Ukrainian newspapers. 

It seems to me that this piece of evidence was very important because in these articles, it was shown how high the level of corruption is in Ukraine and they were able to find the facts in these articles about how mass media in Ukraine is controlled by the State, by the State authorities.  But you know it seems to me the Tribunal did not take into account this additional information, and you know the decision of the Tribunal they wrote as well that if I go back to Ukraine, there is no evidence that they will continue persecute me for the reason of my nationality.

You know at the Tribunal I was trying to do my best to prove that in the country that is corrupted to such extent, everything is possible.  As you know, what else I was trying to draw the attention of the Tribunal to, I was trying to prove that this anti-Semitic tradition, they are actually – they have very long history in Ukraine, it was going from one generation into another generation and in the country that is so corrupted, those…..would always try to find some kind of scapegoat, and those scapegoats they usually would be the people of other nationalities.

And actually, the last thing that I would like to draw your attention to, it is my written submission that I made to the Registry.  This is some documents and in these documents it is possible to find the facts about the last elections that took place in Ukraine and they show the situation in the country now, and maybe this information it can be used as an evidence what can happen to me if I go back.  That is all I wanted to tell you.

HAYNE J:   Thank you very much.  Do sit down.  We need not trouble you, Mr Bromwich.

In our opinion, no arguable error in the decisions of the Federal Court has been demonstrated.  It follows that special leave to appeal is refused with costs.

AT 2.39 PM THE MATTER WAS CONCLUDED