NAGQ v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAGQ v MINISTER FOR IMMIGRATION [2002] FMCA 167

MIGRATION – Application for review of decision of the Refugee Review Tribunal – whether the Tribunal erred in finding the applicant’s fear of persecution was not well-founded.

Migration Act 1958 (Cth) s.36
Judiciary Act 1903 (Cth) s.39B

R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598
R v Murray; Ex parte Proctor (1949) 77 CLR 387
SCAA v MIMIA [2002] FCA 668

Applicant: NAGQ

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ 424 of 2002

Delivered on: 15 August 2002

Delivered at: Sydney

Hearing Date: 8 August 2002

Judgment of: Raphael FM

REPRESENTATION

For the Applicant: Applicant in person

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. Application dismissed.

2. Applicant pay the Respondent’s costs in the sum of $2,500. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 424 of 2002

NAGQ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL
& INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The applicant in this matter seeks review of a decision of the Refugee Review Tribunal constituted by L Mojsin handed down on 27 March 2002 affirming a decision of the Minister’s delegate not to grant him a protection visa.  The application was filed in the Federal Court but was transferred to this court by order of Sackville J.  On 3 July 2002 directions were given, including directions that:

   1.The applicant file and serve any amended application by

   
   

   31 July 2002.

   2.The applicant file and serve written submissions 5 working days prior to the hearing of the application.

2. Although the applicant had access to the Minister’s legal assistance scheme, he did not file either an amended application or any submissions as ordered.  The matter proceeded on the basis of the applicant’s affidavit and the submissions made by him through his interpreter at the hearing. 

3. The applicant is a Ukrainian citizen who arrived in Australia on

   
   

   2 March 2000.  The applicant was immigration-cleared and therefore whilst able to apply for a protection visa (class XA), he did not satisfy clause 785.212 of the Migration Regulations and was therefore not a person to whom the grant of a sub-class 785 (temporary protection) visa could be made.  He was entitled to be considered pursuant to the criteria for a class 866 (protection) visa.  I make this point because it appears in the section entitled “background” in the Tribunal’s decision that the Tribunal may have considered the applicant pursuant to the criteria for sub-class 785. 

4. In order to establish his claim for protection the applicant must prove that he is a person to whom Australia owes duties of protection pursuant to s.36(2) of the Migration Act 1958 (Cth). This section incorporates by reference Article 1A(2) of the Refugees Convention which defines a refugee. The definition is subject to ss.91R and 91S of the Migration Act.

5. The applicant claims that his well-founded fear of persecution arises from his membership of the Progressive Socialist Party of Ukraine (PSPU) and his…