NAGJ v Minister for Immigration
[2003] FMCA 508
•28 October 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NAGJ v MINISTER FOR IMMIGRATION | [2003] FMCA 508 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – review of Refugee Review Tribunal decision – application for a protection visa – where Applicant did not attend the hearing of the Refugee Review Tribunal – no reviewable error shown. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91R, 474
MIEA v Guo & Anor (1997) 191 CLR 559
| Applicant: | NAGJ of 2003 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 1153 of 2003 |
| Delivered on: | 28 October 2003 |
| Delivered at: | Sydney |
| Hearing date: | 28 October 2003 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| The Applicant: | Appeared on his own behalf |
| Counsel for the Respondent: | Mr Reilly |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The Application is dismissed
The Applicant is to pay the Respondent’s costs of this Application in the sum of $4,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 1153 of 2003
| NAGJ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Application
The application before the court today is an application to review a decision of the Refugee Review Tribunal which was handed down on 20 November 2002. In the decision, the Refugee Review Tribunal affirmed the decision of a delegate of the respondent not to grant a protection visa to the applicant. The applicant is known in these proceedings by the letters NAGJ as a requirement of section 91X of the Migration Act 1958. That section forbids the publication of the name of an applicant for a protection visa.
The applicant is a citizen of the Ukraine. He arrived in Australia on
25 November 2000. He arrived lawfully after having spent some time in England as a tourist. His wife and children are apparently still in the Ukraine. The applicant applied for a protection visa on 8 January 2001. In his application, the applicant provided a two page statement. In that statement, he set out the reasons why he wanted a protection visa. He said that he was unwilling to go back to his home country. He said that he had suffered harassment amounting to persecution because of his religious beliefs.
He said that he feared that he would get into trouble on his return. In his statement, the applicant said that his whole family had belonged to the Greek Catholic Church. The Greek Catholic Church is dominant in Western Ukraine. He said that his father had served time in prison for his religious beliefs during the time of the Soviet government. The applicant says that he was married in 1984. His wife, he said, is a deeply religious person. She persuaded him to join the Orthodox Church. His mother and brothers tried to persuade him not to do so.
He went ahead to join the Orthodox Church. As a result his family said they did not want to know him. In his statement, the applicant described a dispute between the Greek Catholic Church and the Orthodox Church. He stated that the burning question was the matter of church property. He said that the Greek Catholic Church claimed to be the owner of a church in Ternopol. The applicant said that the church building was dilapidated and members of the Orthodox Church decided to renovate it. A dispute arose and the Orthodox Church was not able to have the use of the church in Ternopol.
As a result of this dispute, the applicant says that the authorities started to intimidate people. They threatened that they would set the taxation police upon him. He said he was sick and tired of harassment and persecution. That was why he decided he wished to live in Australia. His application for a protection visa was unsuccessful.
A delegate of the Minister for Immigration refused his application on 25 June 2001. The applicant applied to the Refugee Review Tribunal. On 25 September 2002 the Refugee Review Tribunal wrote to the applicant. In the letter the Tribunal told the applicant that the hearing of his application would be held on Thursday, 24 October 2002. The Tribunal sent him a form and asked him to tell the Tribunal if he wished to attend the hearing. On 15 October 2002 the applicant sent the form back to the Tribunal. The applicant was signed by a migration agent on his behalf. In the form the applicant said that he did not want to attend the hearing. He said that he consented to the Tribunal proceeding to make a decision without requiring him to attend. The Tribunal considered his application.
On 20 November 2002 the Tribunal handed down its decision. The Tribunal affirmed the decision not to grant a protection visa to the applicant. The Tribunal noted that the applicant said he did not wish to attend. The Tribunal said at page 65 of the court book:
This matter has therefore been determined on the evidence available to the Tribunal.
The Tribunal read through the application. The Tribunal looked at the Department's file. The Tribunal looked at documents from the United States Department of State. This information is commonly referred to as country information. In the findings of the Tribunal at page 68 of the court book the Tribunal said that the mere fact that person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is well-founded or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
The Tribunal referred to a decision of the High Court of Australia, the decision of MIEA v Guo& Anor (1997) 191 CLR 559. The Tribunal noted that apart from his written statement that the applicant had provided no other documentary evidence to substantiate any of its claims.
The Tribunal said at page 70 of the court book:
The applicant was put on notice by the Tribunal that I was unable to make a favourable decision on the information before me but he has not provided any further information in support of his claims despite ample opportunity to do so, nor has he given me the opportunity to explore aspects of his claims with him.
The Tribunal was not satisfied that the harassment suffered by the applicant was serious enough to constitute persecution for a reason to do with the Refugees Convention. The Tribunal also said there was no evidence to suggest that there would be a real chance that he would be persecuted if he returned. The Tribunal found that the applicant did not have a wellfounded fear of persecution for by reason of his religious beliefs or for any other reason related to the Refugees Convention.
The Tribunal was not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugees Convention. The Tribunal affirmed the decision not to grant a protection visa to the applicant. The applicant lodged an application in the Federal Court on 18 December, 2002. The matter was transferred to the Federal Magistrates Court. The applicant asked the court to send his case back for reconsideration. The applicant gave two reasons. In the first of them the applicant said:
The Refugee Tribunal (that is RRT) appears to be not well informed in matters of reliability of country information, official or independent, from the countries of the former Soviet Union in general and Ukraine in particular.
The applicant's second reason was this:
The RRT is not well informed of or failed to take into account the enormous influence traditionally endured by the Greek Catholic Church in Western Ukraine. Therefore the RRT failed to assess the degree of possible persecution in case of my return to Ukraine. The consequences of such a move would be disastrous not only for me but also for members of my family who still live in Ukraine.
The applicant has said to the court today that he would like the court to get the Tribunal to review the case. When he was asked why the decision of the RRT was wrong he said if he returned to the Ukraine he would have the same problems that he had before. He said that he was persecuted by the Catholic church because he was a member of the Orthodox church. He said that they said they would do something to him or to his children or to his wife. I note that his wife and children are still in the Ukraine. He did not inform the Tribunal of any threat to his wife or children.
In a written submission the respondent has said that:
Each of the grounds raised by the applicants does not raise a question of law. Each of the grounds takes issues with the finding of fact by the Tribunal.
The respondent submitted that the Tribunal had concluded that it was not satisfied that the applicant met the requirements of subsection (2) of section 36 of the Migration Act. The respondent also submitted that the question of what constitutes persecution is a matter of fact and degree. After the Tribunal had considered the applicant's evidence the Tribunal was not satisfied that the amount of harassment claimed by the applicant was sufficient to constitute persecution.
The respondent submits that the applicant has not established any error in the Tribunal's decision. In his submissions to the court today Mr Reilly of counsel who appeared for the respondent told the court that if the applicant complained that the Tribunal was not well informed abut matters in the Ukraine, then the applicant should have attended the Tribunal hearing to have provided that information.
There is no doubt that the Tribunal gave the applicant the opportunity to appear. Section 425 of the Migration Act requires the Tribunal to invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues that it has to consider in the applicant's case. The Tribunal does not have to invite an applicant to appear if the Tribunal believes that it can decide the matter in the applicant's favour on the basis of the material before it. That is clearly not the situation this case. In fact, on 25 September 2002 the Tribunal wrote to the applicant and said:
The Tribunal has considered the material before it but is unable to make a decision in your favour on this information alone.
That is why the Tribunal invited the applicant to appear on 24 October 2002. The applicant chose not to appear before the Tribunal. He consented to the Tribunal deciding the matter in his absence.
The applicant does not make any claims that the Tribunal made a mistake in the law. The applicant complains that the Tribunal did not accept his evidence. In my view, the decision of the Tribunal is covered by section 474 of the Migration Act. The Tribunal's decision is what that section of the Act calls a privative clause.
A privative clause decision has these characteristics about it. First, it is final and conclusive, and second, it cannot be challenged in a court. Where the Tribunal decides a matter on the facts before it, provided it does so according to law, the decision cannot be challenged in a court.
The applicant has not shown that the Tribunal made any error of law. The applicant has not shown the Tribunal made any error in exercising its jurisdiction. The applicant has not shown that the Tribunal denied him natural justice in considering his claim. The Tribunal considered the applicant's claim on the evidence before it. The Tribunal gave the applicant the opportunity to attend and present evidence. He could have given oral evidence or given evidence in writing. He chose not to do so.
I am not satisfied that there has been shown any reviewable error by the Tribunal. The application is dismissed.
The respondent has asked the court for an order that the applicant should pay the respondent's legal costs. The applicant's case has been unsuccessful.
The applicant has been wholly unsuccessful in his claim. The application was one which I'm afraid had no merits to it whatsoever. It is a proper subject for an order for costs. I order that the applicant is to pay the respondents costs of and incidental to this application. I note that the respondent submits that a proper figure would be the sum of $4,000. This appears to me to be an appropriate figure having regard to the scale of costs set out in Federal Magistrates Court Rules.
I order, therefore that the applicant is to pay the respondent's costs an incidental to this application, in the sum of $4,000. I require a transcript of my reasons for this decision. I will shortly adjourn, but for our interpreter you have the thanks of the court for the work that you have done. We could not achieve our task without the valuable service given to us by interpreters. I appreciate your attention.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S. Polley
Date: 12 November 2003
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