NAHL v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 398

FEDERAL COURT OF AUSTRALIA

NAHL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 398

NAHL v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 5 of 2003

ALLSOP J
2 MAY 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N5 of 2003

BETWEEN:	NAHL APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	ALLSOP J
DATE OF ORDER:	2 MAY 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.   that the application be dismissed, and

2.   the applicant pay the respondent’s 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	N5 of 2003

BETWEEN:	NAHL APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	ALLSOP J
DATE:	2 MAY 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) made on 11 November 2002 in which the Tribunal affirmed the decision of the delegate of the respondent Minister not to grant a protection visa to the applicant.

2. The applicant is a citizen of the Ukraine.  She arrived in Australia on 18 September 2000 and lodged an application for a protection visa on 23 October 2000.  On 23 January 2001 a delegate of the respondent made a decision refusing to grant a protection visa to the applicant and she applied to the Tribunal for review of that decision.  That decision was not handed down until 6 December 2002.

3. The Tribunal invited the applicant to attend a hearing.  The applicant declined that invitation.  The Tribunal heard the matter on the papers.  The applicant’s claims were accurately set out in paragraph 4 in counsel for the Minister’s submissions.  This paragraph was in the following terms:

   In support of her application for a protection visa the applicant claimed that she suffered persecution for reason of her political opinion as a member of the Ukrainian Socialist Party. … She claimed that she had been attacked on many occasions in the street by people who blamed communists and socialists for the troubles of her country.  She also claimed that she was not able to be protected by the Ukrainian police because they considered the attacks as a minor problem.  She also claimed that the Ukrainian police was not willing to protect political activists because the police force were an instrument used to protect the regime and to fight opposition to that regime.  The applicant stated that she was warned by the Ukrainian Security Service that if she did not stop her political activities they would find a way to stop it with police assistance.

4. The Tribunal made the following findings which were material to its decision that it was unable to be satisfied on the evidence that:

   (a)the applicant was a member of the Ukrainian Socialist Party;

   (b)the applicant was attacked because of her political activities;

   (c)the applicant was of any interest to the Ukrainian Secret Service;

   (d)the applicant was of any interest to the authorities;

   (e)persons in the Ukraine are at risk of persecution for their membership of the Ukrainian Socialist Party.

5. The application filed by the applicant contains the following complaints:

   1.Review under section 39 B Judiciary ACT 1903.

   2.The Refugee Review Tribunal (RRT) is not very well informed about political life in Ukraine.  It is a very well established tradition in the political game in contemporary Ukraine and earlier in the Soviet Union, and even in the Russian Empire that the political opponents are offered to go to voluntary exile abroad or jailed if they choose to stay in the country.  In this connection, it would suffice to mention the names of Rastropovich, Solzhenitsyn, Nekrasov and many others.  I hope that I do not have to explain to the Tribunal who these people were and what happened to them.

   3.Consequently, the fact that a passport was issued to me and no one tried to stop me from leaving Ukraine does not mean that authorities were not interested in me and that they did not pay any attention to my political activities.

   4.In its Decision the Tribunal states (and I quote from the Decision) that “the Constitution provides citizens with the right to change their government peacefully, and citizens generally exercise this right in practice”. In theory it sounds very nice. I do not think I have to explain to the Tribunal that reality is quite different, especially when the Tribunal itself gives the dates of election in Ukraine which clearly show that so far there was not a single case of change of government in Ukraine, even though the majority of Ukrainians is not happy with the governing party.

   5.In light of all of the above (items 1-4), I would like to ask the Court to send my case back to the DIMIA for re-consideration.

6. As can be seen by the terms of the application the complaints of the applicant about the Tribunal decision are fundamentally questions of fact. The applicant was unable to identify any complaint before me that could be seen as jurisdictional. Indeed she was unable to put any matter before me of substance other than a criticism of the Tribunal’s conclusion. I see no error attracting jurisdiction of this Court under s 39B of the Judiciary Act 1903 (Cth) and in all the circumstances I cannot but conclude that the application should be dismissed.

7. The Orders of the Court will be:

   1.   that the application be dismissed, and

   2.   the applicant pay the respondents costs.

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

Associate:

Dated:             2 May 2003

The Applicant appeared in person.
Counsel for the Respondent:	J Smith
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	28 April 2003
Date of Judgment:	2 May 2003