NAPC v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1020

FEDERAL COURT OF AUSTRALIA

NAPC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1020

NAPC v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N541 of 2003

ALLSOP J
25 SEPTEMBER 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N541 of 2003

BETWEEN:	NAPC APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	ALLSOP J
DATE OF ORDER:	25 SEPTEMBER 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.
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	N541 of 2003

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

JUDGE:	ALLSOP J
DATE:	25 SEPTEMBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application made under s 39B of the Judiciary Act 1903 (Cth) in relation to a decision of the Refugee Review Tribunal (the Tribunal) dated 6 March 2003 and handed down on 27 March 2003, in which the Tribunal affirmed the decision of a delegate of the respondent Minister to refuse to grant the applicant a protection visa.

2. The applicant is a citizen of the Ukraine.  He arrived in Australia on 6 October 1998.  On 12 November 1998 he lodged an application for a protection visa with the Department.  On 23 February 1999 a delegate of the Minister refused to grant a protection visa and on 9 March 1999 the applicant applied for review of that decision.

3. The applicant claimed to be a Kazan Tatar who in 1979 moved to Crimea.  He claimed that he and his family were forced by Crimean Kazak Tatars to join a Crimean Council.  He did not wish to participate in such a Crimean Tatar ethnic nationalist organisation.  He claimed that if he returned, the Ukraine the Tatar ultra nationalists would again force him to join their actions.  He claimed that from 1992 to 1998 he was beaten on many occasions because he refused to support the fight for Tatar independence or autonomy.  He claimed that he did not support the idea of Crimean Tatar autonomy from the Ukraine.  He claimed that the Ukrainian authorities were not interested in supplying him any protection and that it was impossible for him to find a safe place in the Ukraine because of claimed corruption in Crimea.

4. The Tribunal rejected the applicant’s claims noting that they were contrary to the evidence in independent country information which made no reference to Kazak Tatars harassing Kazan Tatars or vice versa.  The Tribunal also rejected the applicant’s claim that the police would not assist him and found that State protection was available in the Crimea if the applicant wished to avail himself of it.  The Tribunal appeared to apply the real chance of persecution test from Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. The Tribunal’s conclusion that the applicant’s fears were not well founded, as a finding of fact, appears to have been open on the material before it, including in particular the independent country information, for the reasons which it gave.

5. Also, the independent conclusion that the applicant could avail himself of state protection was an independent basis for the conclusion reached by the Tribunal.

6. I have read the Tribunal’s reasons. I am not able to discern from reading them any apparent jurisdictional or other error which may enable the invocation of subs 39B(1) or para 39B(1)(A)(c) of the Judiciary Act.  The applicant’s application, whilst obviously prepared by someone with some familiarity with administrative law, provides no particulars whatsoever of the asserted errors said to affect the Tribunal’s decision.  I do not set the application out in full.  It is sufficient to say that conclusionary legal assertions as to jurisdictional error are made without descending to the slightest particularity. 

7. The applicant was not represented before me.  He was unable, when given the opportunity, to give any meaningful indication of errors in the Tribunal, other than some brief submissions as to his fundamental factual disagreement with the Tribunal’s conclusion.

8. In the circumstances, I am unable to identify any basis upon which the application may succeed.  In these circumstances the application should be dismissed.

9. On the material before me I am unable to identify any reason why costs should not follow the event. 

10. In the circumstances, the application will be dismissed with costs.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated:            25 September 2003

Applicant appeared in person with the assistance of a Russian interpreter
Counsel for the Respondent:	Mr T Reilly
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	19  September 2003
Date of Judgment:	25 September 2003