NAQE v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 1423

FEDERAL COURT OF AUSTRALIA

NAQE v Minister for Immigration & Multicultural & Indigenous Affairs
[2002] FCA 1423

APPLICANT NAQE OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 778 OF 2002

HILL J
24 OCTOBER 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 778 OF 2002

BETWEEN:	APPLICANT NAQE OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HILL J
DATE OF ORDER:	24 OCTOBER 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. the application be dismissed.
2. the applicant pay the Minster’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 778 OF 2002

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

JUDGE:	HILL J
DATE:	24 OCTOBER 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. Before the court is an application invoking s 39B of the Judiciary Act 1903 (Cth) as made applicable as a means of judicial review of decisions of the Refugee Review Tribunal (“the Tribunal”) pursuant to provisions of the Migration Act 1958 (Cth) (“the Act”). The decision of the Tribunal in this case is a privative clause decision as defined in s 476 of the Act.

2. When the matter was called for hearing this morning the applicant did not appear.  He had previously appeared at a directions hearing when the date for hearing was set.  However, it seems that he is no longer at the address which was given to the Court as the address for service of proceedings and that a telephone number which he had supplied did not answer.

3. The applicant is a citizen of the Ukraine, formerly part of the Soviet Union.  On arrival in Australia he applied for a protection (class XA) visa.  It is a criterion for the grant of such a visa that the applicant generally speaking be a person to whom Australia has protection obligations under the provisions of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as modified by the Protocol relating to the Status of Refugees, done at New York on 31 January 1967, herein compendiously referred to as “the Convention”.

4. Again, generally speaking, it can be said that a person will be entitled to protection if that person is a refugee as defined in Article 1(A)(2) of the Convention which provides that a person is a refugee who;

   “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

5. The applicant claimed to be a refugee within that definition because he had, he said, a well-founded fear of persecution by reason of his religion which he stated in his application to be "White Brotherhood".  Details of what he regarded to have been persecution which he suffered while in the Ukraine in his application for the visa were to say the least rather brief.  In essence they involved little more than an assertion that he had left the Ukraine because he had such a well-founded fear.  He was, he claimed, a member of the White Brotherhood.  He was an outcast in the Ukrainian society and that he had suffered a lot because the Ukrainian authorities were doing everything to eliminate the White Brotherhood in the Ukraine.

6. He claimed that he would be gaoled only for the reason of his membership in the White Brotherhood, that he had been beaten on many occasions by police and received death threats, that there was no possibility of his finding protection there from any government authority and that the white brotherhood was regarded as a dangerous cult, even although it was, he said, a peaceful religious organisation.

7. His application for a visa was refused by a delegate of the Minister and the applicant applied to the Tribunal for review of that decision.  In due course the applicant was notified by the Tribunal that it was unable to give a favourable decision on the application by reference to the papers that had been filed with it.  Accordingly, the Tribunal invited him to attend a hearing of the Tribunal to give oral evidence and to present arguments.

8. Notwithstanding that the applicant indicated his intention to attend the hearing on the date advised to him he did not attend nor was he represented by any person. 

9. In its reasons for decision the Tribunal noted that the applicant had provided very little information about the persecution he said he feared.  The Tribunal noted that he had given no information as to when he had joined the brotherhood or what his activities were on its behalf.  So far as the application referred to his having been beaten or threatened with death no information was given as to when the incidents occurred, where they occurred or in what context. 

10. The Tribunal formed the view that it was not satisfied on the evidence it had been given that the applicant was a member of the White Brotherhood.  It noted further that even if he were a member, it was unable to be satisfied on the evidence he had provided that he had suffered any mistreatment which was sufficiently serious as to amount to persecution in the past.

11. Having regard to certain information which the Tribunal refers to in its reasons the Tribunal has indicated that it was of the view that there was no real chance that the applicant would face persecution if he returned to the Ukraine in the foreseeable future.  It followed in the circumstances that the Tribunal was not satisfied that there was a real chance of persecution or that the applicant was a refugee within the meaning of the Convention.

12. I have read the Tribunal's reasons and am unable to detect anything in them which would be the basis of a ground for the issue of any writ of the kind referred to in s 39B. The applicant has not, as ordered, filed any submissions indicating in what way the Tribunal's decision was defective.

13. Because the applicant has not appeared this morning the appropriate order is that the application be dismissed. I would do so not only because the applicant has not appeared but also because I can see no ground in any event for relief under s 39B of the Judiciary Act.

14. There is therefore no particular reason to consider the question whether the Court does have jurisdiction to deal with the matter under the Act having regard to the fact that the Tribunal's decision is a privative clause decision. However, the provisions of s 476(1) would provide an additional ground for dismissing the application particularly in the present case where there is no basis anyhow for relief under s 39B of the Judiciary Act.  I would accordingly dismiss the application and order the applicant to pay the Minister's costs of it.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.

Associate:

Dated:            20 October 2002

Counsel for the Applicant:	No appearance
Counsel for the Respondent:	M Wegney
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	24 October 2002
Date of Judgment:	24 October 2002