NARE of 2002 v MIMIA

[2005] HCATrans 512

[2005] HCATrans 512

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S212 of 2004

B e t w e e n -

NARE OF 2002

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

McHUGH J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 5 AUGUST 2005, AT 8.50 AM

Copyright in the High Court of Australia

McHUGH J:   The applicant is a citizen of Lithuania.  She arrived in Australia on 24 September 2000 and applied for a protection visa on 9 March 2000.  On 20 August 2001 a delegate for the Minister refused her application.  On 25 June 2002, the Refugee Review Tribunal affirmed that decision.  The Federal Court and the Full Court of the Federal Court rejected appeals against the Tribunal’s determination.

The applicant’s initial claim was that she feared persecution in Lithuania by reason of her Jewish religion and Caucasian ethnicity.  She later denounced these claims, alleging that they were fabricated by her previous migration advisor against her wishes.  The claim that she pursued at the Tribunal hearing was that her de facto husband had been murdered in 1996 as a result of his resistance to the war in the Caucasian region and his anti-government activities.  After the death of her husband, the applicant adopted the deceased’s biological son.  She also has a son from a prior marriage to a Georgian national.  Both sons are in Australia and lodged applications for protection visas.  The applicant claims that they are both in danger of persecution and harm for the same reasons put forward in her own application.  

The applicant claimed to fear persecution from people who had benefited from or been involved in the murder of her de facto husband.  She was unable to identify any particular individuals who had threatened to harm her, but said that they were highly-placed within the Russian bureaucracy.  On several occasions, the Tribunal told the applicant that her claim for a protection visa was being assessed in relation to the possibility of persecution in Lithuania, her country of citizenship.  As a result, any threats to her well-being with respect to individuals in Russia would not assist her claim.  Evidently, the Tribunal implicitly rejected the applicant’s submission that the border between Russia and Lithuania was porous with the result that any threats from Russian individuals would be of equal concern to her upon return to Lithuania. 

The Tribunal referred to Russian police documents that indicated that the applicant’s former husband was killed as a result of his involvement in criminal activities in Moscow and not for any political reason.  The Tribunal had before it a letter from the applicant’s lawyer which supported this conclusion.  It did not have any evidence to support the applicant’s contrary claim that her husband was killed because of his political views or activities.

The applicant also claimed that she had received threats and intimidation in relation to the adoption of her deceased husband’s son.  The Tribunal did not accept that these threats occurred.  The applicant also claimed that the Russian judicial system would not protect her because the authorities would have a vested interest in frustrating the proper investigation of her husband’s murder.  The Tribunal concluded that the applicant had provided inadequate materials to substantiate her claims and that she had failed to explain the numerous apparent inconsistencies in her version of events. 

Factual findings are the province of the Tribunal.  Where, as here, the reasons of the Tribunal do not disclose any error of law, there is no scope for intervention by this Court.  There is nothing to suggest that the Full Federal Court erred in its assessment of this case.  Accordingly, the application for special leave must be refused with costs.

Under the power conferred by r 41.11.1 we direct the Registrar to draw up, sign and seal an order that the application is dismissed with costs.  I publish our joint reasons.

AT 8.50 AM THE MATTER WAS CONCLUDED