NAQA v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 228

FEDERAL COURT OF AUSTRALIA

NAQA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 228

NAQA v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 127 of 2003

MOORE J
SYDNEY
13 MARCH 2003

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 127 OF 2003

BETWEEN:	NAQA OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MOORE J
DATE OF ORDER:	13 MARCH 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application for an extension of time 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	N 127 OF 2003

BETWEEN:	NAQA OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MOORE J
DATE:	13 MARCH 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(Revised From Transcript)

1. This is an application for an extension of time to appeal against a judgement of a Federal Magistrate given on the 20 November 2002.  While reasons for judgment were given orally that day, they were not published in a written form until 30 January 2003.  The application for an extension of time was filed on 14 February 2003.  In those circumstances, nothing of substance, in my opinion, turns on the delay in instituting the appeal.

2. The more important question is, however, whether the appeal has any prospects of success if time was extended.  The matter before the Federal Magistrate was an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) of 13 June 2002.  The applicant, who is a male Ukrainian national, claimed to have a well founded fear of persecution based on at least his religious beliefs. 

3. The applicant had been a member of a religious group called the White Brotherhood of the Ukraine.  The grounds for judicial review raised, in many respects, bare challenges to the findings of fact of the Tribunal.  However, one ground concerned what was said to be an unfair standard of proof imposed on the applicant by the Tribunal.  In written submissions filed in the proceedings before the Federal Magistrate, there was an allegation that the Tribunal had been biased.  That was because the applicant’s case was one of three raising substantially the same issues but had been treated differently.

4. All three cases were dealt with by the same Tribunal member.  The two other applicants were women and had been successful, though the applicant had not been.  In his reasons, the Federal Magistrate noted that there were some apparent inconsistencies between one of the decisions concerning one of the women and the decision under review concerning the applicant.  However, the Federal Magistrate also noted that in the other decision, the Tribunal had determined that the woman claiming to have a well founded fear of persecution would continue to profess her religious beliefs.  The Federal Magistrate said that in the present case, the Tribunal was not so satisfied.

5. Having regard to the reasons of the Tribunal, whose findings and conclusions I have read, it is clear that the Tribunal found that the applicant had lost interest in the White Brotherhood after about 1994.  Moreover, that finding was based on the evidence of the applicant himself.  There may be circumstances where differential treatment by the one Tribunal member of applicants whose circumstances were in substance the same, might arguably give rise to an apprehension of bias.  However in the present case, the clear finding of the Tribunal that the applicant had lost interest in the White Brotherhood in 1994 (the point of distinction between the other case noted by the Federal Magistrate) provided a complete answer to the complaint made by the applicant in the proceedings before the Federal Magistrate.  In my opinion, the applicant has not demonstrated any arguable ground of appeal. 

6. While I accept that the applicant remains dissatisfied by the decision of the Tribunal, the relevant question I have to answer as part of determining this application for an extension of time is whether this appeal raises any point of substance.  I am not satisfied it does.  Accordingly, I order that the application for an extension of time be dismissed.  I order that the applicant pay the respondent's cost of the motion. 

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated:            20 March 2003

The applicant appeared in person
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	13 March 2003
Date of Judgment:	13 March 2003