NAMP v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 684

FEDERAL COURT OF AUSTRALIA

NAMP v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 684

NAMP v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 2164 OF 2003

DOWSETT J
18 MAY 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 2164 OF 2003

BETWEEN:	NAMP APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	DOWSETT J
DATE OF ORDER:	18 MAY 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The notice of motion filed on 23 April 2004 be dismissed.

2.The applicant is to pay the respondent’s costs of the motion including the cost of the appearances on 10 May and today.

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 2164 OF 2003

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

JUDGE:	DOWSETT J
DATE:	18 MAY 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant arrived in Australia on 13 April 2000. On 12 May 2000, he lodged an application for a protection visa. That application was refused by a delegate of the Minister, and an application to the Refugee Review Tribunal was also unsuccessful. The applicant then applied to this Court for review of the Tribunal’s decision. That matter was remitted to the Federal Magistrates Court on 17 April 2003. The application for review was dismissed, and the applicant has appealed. The nature of the relief sought before the Magistrate is not clear from the application, but I infer that it is of the nature specified in s 39B of the Judiciary Act 1903 (Cth). If that is so, then the Magistrate’s decision may be a decision refusing to make an order nisi, in which case leave to appeal would be necessary. As far as I can see, no such application has ever been made, but that does not matter in light of the view which I have formed of the merits of this case.

2. The Chief Justice directed that the matter be heard by a single Judge.  It was originally listed for hearing in the week commencing 26 April before another Judge, but early in the preceding week, was brought forward to the Thursday of that week, the 22nd, before me.  Notification of the change was sent to the applicant’s address for service.  He did not appear on 22 April, and the appeal was dismissed.

3. On 23 April he applied to reinstate the appeal, claiming that he had been absent in Melbourne and had not received notice of the changed hearing date until the afternoon of 22 April.  I am willing to accept that assertion at face value.  Nonetheless the applicant’s predicament is of his own making.  Having nominated his address for service, he had an obligation to maintain contact with it in order to receive documents from the Court or from the respondent.  In all of the circumstances, though, I would be willing to set aside my order and reinstate the appeal if the applicant were able to demonstrate some question which prima facie appeared worthy of argument.  It seems to me, however, that he has failed to do so.

4. I should say something about the Tribunal’s decision and the applicant’s criticisms of it.  He claims to have left the Ukraine for fear of persecution by reason of his political opinions.  Those opinions were associated with his membership of a political party known as Hromada.  He claims adverse police action on a number of occasions as the substantial basis for his fear of persecution.  However an examination of his evidence led the Tribunal to conclude that none of those incidents could properly be attributed to his membership of Hromada or his political opinions.  In this regard, it should also be noted that the Tribunal formed an adverse view as to the credibility of at least some of the applicant’s claims.

5. It accepted that he joined the party in 1999 and that he assisted with security at party rallies.  He claims that at a party rally in August 1999 he acted as a security guard, protecting the local party chairman and maintaining order.  Two or three days after the rally, police searched his home.  They had done so on earlier occasions.  The police asked him if he was in possession of arms or drugs.  He was given a general warning that he should be careful, but nothing was said about his political activities.  The Tribunal saw nothing in the evidence which suggested that the search was in any way related to his involvement in the rally.  The applicant, himself, said that he had assumed that the search was in relation to a stall which he conducted at the markets. 

6. Two or three days later, he was visited by officers of the SBU, the security service.  They produced a search warrant and said that they were searching for drugs and alcohol.  The search was completed without incident.  The applicant did not suggest that other members of the party involved in the rally had been subjected to harassment or police searches.  The Tribunal was not satisfied that the applicant had suffered any harm in the course of these searches or that they were in any way motivated by his membership of the party or attendance at the rally.

7. The applicant claims to have attended a second party rally in mid-August 1999, again as a security guard.  Shortly after the rally commenced, there was some disorderly conduct.  Plates were broken and a table overturned.  The applicant and other security guards intervened, using force in order to control the situation.  The applicant claims that he and his colleagues were provoked.  He claims that he subsequently delivered those involved in the disorder to the police.  The police then beat him and his colleagues and took all involved to the police station.  The applicant was questioned and told to sign a paper which accused him of being drunk and responsible for organising a fight.  He claims that he was beaten until he agreed to sign the paper.  He was kept in detention for a total of two hours.  Again, the Tribunal was not satisfied that his detention and mistreatment had been motivated by party membership or his participation in the political rally.  There was no suggestion that anybody involved in the rally, other than those involved in the fracas, had been arrested or questioned. 

8. The applicant attended a third rally at the end of August, it passed without incident.  He attended a fourth rally in September.  He claims that at the end of a speech by the party chairman somebody threw a Molotov cocktail into the crowd.  Following this incident, the police arrested certain suspects, the applicant and two of his colleagues.  He was taken to a police station and interrogated.  He claims that he was beaten and made to sign a paper acknowledging his involvement in the incident, that he was head of a criminal team, that he had assaulted a police officer and that he was drunk and under the influence of drugs.  He claims that he was threatened with death if he did not sign the paper.  He was released after three hours.

9. The Tribunal pointed out that this arrest also occurred after a serious security incident.  The Tribunal inferred that he had been arrested for questioning in connection with the incident.  It pointed out that despite the seriousness of the crimes which he had allegedly admitted under duress, the applicant was released within three hours without charge.  Again, the Tribunal was not satisfied that he had been mistreated for reason of his political opinion.

10. Finally, in March 2000, the police called him to a police station where he was ordered to sign a paper acknowledging that he was the head of a criminal gang dealing in arms and extorting money from other store holders at the markets.  He was told that if he signed the paper he would be freed on bail and that if he did not do so, he would be imprisoned.  He was given one night to think about it and apparently allowed to go at large.  Instead of returning to the police station on the following morning, he left town.  The Tribunal found this account to be implausible and gave reasons for that view.  Again, the Tribunal pointed out that even if the incident had occurred as alleged, there was no evidence that it was motivated by his political opinion.

11. As a result of its consideration of these incidents, the Tribunal was satisfied that the applicant had not previously suffered harm for reason of his political opinion.  Such incidents were the applicant’s primary basis for his claim to a well-founded fear of persecution for a Convention reason.  Little or nothing else in his claim offered support for such a fear.  However the Tribunal also addressed available country information.  It inferred from that information that, ‘apart from this handful of high profile Hromada members (or former members), there was no evidence in the sources consulted by the Tribunal that ordinary members or supporters of Hromada party have been or are a target of persecution or harassment by the Ukrainian authorities.’

12. The Tribunal then pointed out that the applicant had been a member of Hromada for only a short time and had only been involved in the four rallies to which I have referred.  He resigned from the party in February 2000, that is prior to the final incident involving the police.  It therefore inferred that his political involvement was not at a level likely to attract persecution.

13. The Magistrate found no merit in the applicant’s criticisms of this decision, and I have formed the same view.  The applicant suggests that the Tribunal’s conclusion involved the mistaken perception that only prominent politicians could be regarded as refugees.  That is not a fair representation of the Tribunal’s approach, as I have demonstrated.  The applicant also asserts that the finding that he had been active only at the four rallies was factually incorrect.  He said that he had told the Tribunal that he had not only participated in the rallies, but had also been in charge of security.  He claims to have set up, and to have been in charge of, the party’s security subdivision.  This seems to be little more than an elaboration upon his claim to have been in charge of security at the rallies, which claim the Tribunal appears to have understood and accepted.

14. However the primary basis of the appellant’s attack upon the Tribunal’s decision is that it proceeded on the basis that his having taken part in four rallies did not constitute political activity.  I have demonstrated that the Tribunal was not guilty of this heresy.  It is also asserted that the Tribunal did not ‘explore the question of possible protection’ if the applicant is threatened with harm upon his return to the Ukraine.  In view of its satisfaction that he would not be subjected to persecution for a Convention reason, that issue does not arise.

15. The applicant also argues that a person may have political opinions without expressing them, and that it may be inferred that misconduct by the authorities is motivated by a Convention reason in the absence of direct evidence.  Both propositions are no doubt true, but the Tribunal advanced good reasons for its conclusion as to the absence of any apparent relationship between the applicant’s political beliefs and the police conduct towards him.  The applicant also submits that, while persecution of high profile politicians is itself high profile, persecution of low profile people for political opinions may not be so obvious.  That proposition may also be correct, but it does nothing to establish a relationship between the police conduct and the applicant's political opinions.

16. In the circumstances, the application to set aside the order made on 22 April must be dismissed.  There is no arguable ground of appeal.  There would therefore be no point in vacating the order.

17. The motion is dismissed.  The applicant is to pay the respondent’s costs of the motion, including the cost of the appearances on 10 May and today.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:             28 May 2004

Counsel for the Applicant:	The Applicant appeared in person.
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	18 May 2004
Date of Judgment:	18 May 2004