NARX v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCAFC 41

FEDERAL COURT OF AUSTRALIA

NARX v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCAFC 41

NARX v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 1658 OF 2003

HEEREY, SUNDBERG and CRENNAN JJ
1 MARCH 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1658 OF 2003

On appeal from a judge of the Federal Court

BETWEEN:	NARX APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	HEEREY, SUNDBERG and CRENNAN JJ
DATE OF ORDER:	1 MARCH 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the respondent’s costs of the appeal.

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 1658 OF 2003

On appeal from a judge of the Federal Court

BETWEEN:	NARX APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	HEEREY, SUNDBERG and CRENNAN JJ
DATE:	1 MARCH 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:

1. The appellant is a citizen of Ukraine. His application for a protection visa was refused by the respondent’s delegate. That refusal was affirmed by the Refugee Review Tribunal. A judge of the Court dismissed his application for a review of the Tribunal’s decision. He appeals to the Full Court from the primary judge’s decision.

2. By letter dated 21 January 2003, posted to his last known place of residence, the appellant was notified that the Tribunal was unable to make a decision in his favour on the material before it, and that accordingly he was invited to come to a Tribunal hearing to give oral evidence and present arguments in support of his claims. See Migration Act 1958 s 425. The letter informed the appellant of the date of the hearing. He told the Tribunal that he wanted to come to a hearing. The Tribunal arranged for an interpreter to be at the hearing, but the appellant did not attend. He did not contact the Tribunal to explain his failure to attend. In its decision the Tribunal member recorded that in view of the foregoing, he proceeded to reach a decision on the basis of the material already before him.

3. The applicant included with his visa application a short statement in which he said he had been a member of the Ukrainian Nationalists’ Congress Party which was opposed to the government. He said he had become the leader of a primary branch of the Party when he was in a technical college. From 1993 to 1996, when he was deputy principal of a school, he had organised a primary branch there as well. He said he organised trips to picket the Ukraine Supreme Soviet and demanded the sacking of the Cabinet Chairman and the dissolution of the Supreme Soviet. The appellant said that picketers and protestors often clashed with police. His role led first to his wife being sacked, and later…