NAGP v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 423

FEDERAL COURT OF AUSTRALIA

NAGP v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 423

NAGP & ORS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N1667 OF 2003

STONE J
6 APRIL 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1667 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA CONSTITUTED BY BARNES FM

BETWEEN:

NAGP
FIRST APPELLANT

NAGQ
SECOND APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:	STONE J
DATE OF ORDER:	6 APRIL 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed with 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 1667 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA CONSTITUTED BY BARNES FM

BETWEEN:

NAGP
FIRST APPELLANT

NAGQ
SECOND APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:	STONE J
DATE:	6 APRIL 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of the Federal Magistrates Court of 9 October 2003.  The appellants, who are in a de facto relationship, are citizens of Ukraine who arrived in Australia on 18 April 2000.  Their applications for protection visas were refused successively by a delegate of the Minister and the Refugee Review Tribunal (‘Tribunal’).  They applied to the Federal Magistrates Court alleging error on the part of the Tribunal.  The learned Federal Magistrate found there was no error on the part of the Tribunal in relation to either appellant. 

2. The appellants have appealed to this Court and the Chief Justice, pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth), has directed that the appeal be heard by a single judge.

3. The appellants did not provide any written submissions and did not appear at the time set down for hearing of the appeal.  There is no explanation for their non-appearance.  In the circumstances, the Court has an option under O 52 r 38A of the Federal Court Rules either to dismiss the appeal or to deal with the substance of the appeal.  I have decided to adopt the latter course. 

4. The notice of appeal states that the Federal Magistrates Court erred but does not give any particulars in relation to that claim.  Briefly, the appellants’ claim to fear persecution because of their membership of the Pentecostal Church in the Ukraine.  Before the Tribunal the first appellant gave details of alleged beatings and other acts of harassment by the Ukrainian Self Defence Organisation (‘UNSO’).  The second appellant's claim before the Tribunal was not as well documented. 

5. The Tribunal refused the applications on two grounds.  First, it was not able to accept the appellants’ claims to be members of the Pentecostal Church.  It found that the paucity of the information and understanding that both appellants had about the Church, raised serious doubts as to their claims.  The Tribunal also found that the first appellant’s claims to have suffered beatings and harassment were not substantiated. 

6. Independent of these conclusions however, the Tribunal based its decision on its understanding of the position of Pentecostal Church members in the Ukraine.  The Tribunal stated that even if it were prepared to accept the appellants' claims as to their membership of the Pentecostal Church, the independent country information before the Tribunal showed that the Pentecostal religion had been followed in the Ukraine for over 100 years and is treated and respected as a traditional religion.  The Tribunal said that there is religious freedom in the Ukraine and that local enforcement authorities do not persecute members of the Pentecostal Church.  The Tribunal said it could find no independent reports of any members of the Pentecostal Church being harmed in recent years.

7. On the basis of the independent country information, which the Tribunal accepted, and given its doubts as to the credibility of the appellants, the Tribunal found that their claims were not made out.  In the view of the Federal Magistrate, those findings were open to the Tribunal and the learned Federal Magistrate was not able to detect any error on the part of the Tribunal.  I agree with the Federal Magistrate, and for the reasons that she gave would also reject the appellants' claim of error and therefore the appeal must be dismissed with costs.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:

Dated:            15 April 2004

Counsel for the Respondent:	Mr Tim Reilly
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	6 April 2004
Date of Judgment:	6 April 2004