NAPR v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1123

FEDERAL COURT OF AUSTRALIA

NAPR v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 1123

NAPR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 583 of 2003

STONE J
15 OCTOBER 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 583 OF 2003

BETWEEN:	NAPR APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	STONE J
DATE OF ORDER:	15 OCTOBER 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application 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 583 OF 2003

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

JUDGE:	STONE J
DATE:	15 OCTOBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant is a citizen of Lithuania who arrived in Australia on a temporary business visa in May 2001.  His application under the Migration Act 1958 (Cth) (‘Migration Act’) for a protection (Class XA) visa has been refused by a delegate of the respondent and by the Refugee Review Tribunal (‘the Tribunal’).

2. He has applied to this Court under s 39B of the Judiciary Act 1903 (Cth) for a review of the Tribunal’s decision. He contends that the Tribunal’s decision is affected by jurisdictional error in that it:

   (a)identified the wrong issues and asked itself the wrong questions in relation to the applicant’s claims to have been persecuted within the meaning of s 91R(1)of the Migration Act; and

   (b)ignored relevant material in relation to his claims of persecution.

   THE APPLICANT’S CLAIMS

3. The applicant claimed in his protection visa application that he feared persecution in Lithuania for his ‘political and social activity’ which consisted of opposing the authorities in a number of ways including in relation to compulsory military service and a nuclear power station.  He claimed that his life had been threatened and that his close relatives would have been threatened if he had not left the country.  He claimed that if he were to return to Lithuania he would be subjected to ‘constant chase’ and physical abuse by bandits, mafia and police and might be falsely accused and put in gaol.

   THE TRIBUNAL’S REASONS

4. The Tribunal found that the applicant’s claims of persecution were not consistent with the independent country information or with evidence that the applicant had enjoyed a stable lifestyle.  The Tribunal accepted evidence that the applicant had lived at the same address from birth until he left the country.  He had a stable employment record having worked as a mechanic from 1998 until May 2001.  Moreover, his passport showed that he had been able to travel in and out of the country apparently without any difficulty.

5. The Tribunal was not satisfied that the applicant was wanted by authorities for military service as he was over the age when this was required.  The Tribunal also rejected the applicant’s claim that he feared reprisals from the mafia because they were owed money from his self-owned business.  As the applicant had lived at the same address for the whole of his life the Tribunal was of the opinion that the mafia could easily have located him if they had any interest in him

   APPLICATION TO REVIEW

6. At the hearing this morning the applicant did not appear.  I am satisfied that he was notified of the date and time of the hearing and was served with the respondent’s submissions.  Accordingly I decided to proceed with the matter in accordance with O31 r2(1).  It follows that, under O32 r2(2) that applicant may apply to vary or set aside my orders.  Nevertheless, having considered the matter, my reasons may be of some assistance should this be the case.

7. Not only did the applicant fail to appear; he also made no written submissions to the Court.  Thus there is nothing that points to the issues that he says were wrongly identified or the relevant material that was ignored.  As Mr Lloyd, counsel for the Minister, has rightly submitted the Minister has no case to answer.  Nevertheless, in his written submissions Mr Lloyd did address the substance of the Tribunal’s decision.  I have also considered the Tribunal’s reasons to see if I could find evidence of error such as is claimed.

8. In my opinion the Tribunal considered all the evidence carefully and on that basis found that the applicant did not have a well-founded fear of being persecuted for a Convention reason if he returned to Lithuania.  It is apparent that the applicant disagrees with this finding and thinks the Tribunal should have come to a different conclusion.  This Court, however, does not have jurisdiction to review the facts.

9. In my view the findings that the Tribunal made were open to it on the evidence.  I am unable to discern any wrong issue or question in the Tribunal’s consideration of the application.  Similarly on the material before me I find nothing to suggest that the Tribunal ignored relevant material.

10. For these reasons the application must 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 Stone.

Associate:

Dated:             15 October 2003

Counsel for the applicant:	There was no appearance for the applicant.
Counsel for the respondent:	Mr S Lloyd
Solicitor for the respondent:	Sparke Helmore
Date of Hearing:	15 October 2003
Date of Judgment:	15 October 2003