NAWB v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 712

FEDERAL COURT OF AUSTRALIA

NAWB v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 712

NAWB v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 1467 of 2003

BRANSON J
4 JUNE 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1467 of 2003

BETWEEN:	NAWB APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	BRANSON J
DATE OF ORDER:	31 MAY 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the costs of the respondent.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1467 of 2003

BETWEEN:	NAWB APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	BRANSON J
DATE:	4 JUNE 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) dated 19 August 2003, which affirmed a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (‘the delegate’) refusing to grant the applicant a protection visa. 

2. At the time when the application was listed for hearing the applicant was not in the courtroom.  At my request, and before the matter was called for hearing, my associate telephoned the applicant on a mobile telephone number which he had recorded on a form of notice of change of address for service filed by him on 24 February 2004.  The applicant answered the telephone and indicated that he was in Orange.  I directed that the application should be called for hearing with the applicant participating by telephone.

3. When the matter was called for hearing, the applicant participated by telephone with the assistance of an interpreter who was present in Court.  The applicant confirmed his earlier advice to my associate that he had forgotten that his application was listed for hearing this morning.  He acknowledged, however, that he had received written notification some months ago that his application would be heard this morning.  The Court’s records show a letter dated 31 December 2003 advising the applicant that the hearing date for his application was ‘Monday 31 May 2004 at 10.15 am’.  The respondent tendered a copy letter dated 5 January 2004 addressed to the applicant similarly advising him that his application would be heard on Monday 31 May 2004 at 10.15 am.

4. In the event it was not necessary for the veracity of the applicant’s claim to have forgotten the hearing date to be tested as he did not request an adjournment of the hearing.  He made submissions in support of his application over the telephone with the assistance of the interpreter.

5. After hearing the submissions of the parties, and adjourning briefly to give consideration to those submissions, I pronounced orders dismissing the application and requiring the applicant to pay the respondent’s costs.  I indicated that written reasons for the order of dismissal would be published shortly.  These are those written reasons.

6. The applicant, a citizen of Ukraine, entered Australia on the 8 October 2001.  On 13 November 2001 the applicant lodged an application for a protection visa with the Department of Immigration and Multicultural affairs (‘the Department’). 

7. The applicant claims he was persecuted in Ukraine because of his involvement with a religion known as the ‘Usmalos’ or ‘Great White Brotherhood’.

8. On 6 September 2002 the delegate refused to grant the applicant a protection visa.  The applicant applied to the Tribunal for review of that decision on 12 September 2002.

9. On 18 July 2003 the Tribunal sent a letter by registered post to the applicant’s residential address inviting the applicant to attend a hearing on a scheduled date.  The letter was not returned unclaimed to the Tribunal.  The applicant failed to attend the scheduled hearing.  The Tribunal proceeded to deal with the applicant’s application for review by giving consideration to the applicant’s application to the Tribunal, the Department file (including a taped recording of the interview with the delegate) and other material available to it from a range of other sources.  The applicant told me that the letter inviting him to the hearing was received at his residential address but that the person who actually received the letter failed to pass it on to him before the scheduled hearing date.  Nonetheless, as is indicated in [17] below, the Tribunal was entitled to proceed as it did.

10. The Tribunal was ‘not satisfied that the applicant has a well-founded fear of persecution for reasons of religion in Ukraine, or indeed for any other Convention reason’. 

11. By his application to this Court filed 24 September 2003 the applicant claims the following:

    ‘1.RRT did not assess all relevant country information pertinent to the case.

    2.RRT made an error of law while applying a definition of “well-founded fear”.’

12. The two claims are repeated as the grounds of the application.  There is no accompanying affidavit to the application and the applicant has not provided any particulars of his claims.  At the hearing the applicant sought to support the above grounds by asserting, in effect, that Ukraine does not enjoy real democracy and is a corrupt society.

13. The matters raised by the applicant do not support the claims made in the applicant’s application.  There is nothing in the reasons for the Tribunal’s decision that discloses that the Tribunal erred in the way claimed in the application.  Nor do the Tribunal’s reasons for decision disclose any legal error affecting the Tribunal’s decision.

14. The Tribunal rejected the applicant’s claims on the basis of credibility.  First, the Tribunal found that there were a number of ‘anomalies’ in the applicant’s claims.  For example, the applicant claims that he had been hospitalised for serious kidney damage after being beaten by the police after his arrest at a demonstration by the members of the Great White Brotherhood.  The applicant had originally claimed that he was hospitalised for a total of seven weeks, but had, at the interview with the delegate, revised his time in hospital to three weeks after it was drawn to his attention that he had travelled to Germany for business reasons within the period of his claimed hospitalisation.  The applicant’s passport records that he had travelled to Germany the day after his revised date of release from hospital.  The Tribunal did not accept that the applicant would have been able to travel internationally if he had suffered from the type of serious injury he claimed.

15. Secondly, the Tribunal found that the applicant’s evidence did not disclose an understanding of the Great White Brotherhood beyond what could be ‘obtained from a cursory reading of material from the internet’.  The Tribunal found the applicant,

    ‘[h]as not given any indication that he has a detailed knowledge of the tenets and beliefs of the religion, in the depth that one would expect of a person actively involved in the religion.  On the basis of the information before it the Tribunal is not satisfied that the applicant is a genuine believer of The White Brotherhood.’

16. Thirdly, on the assumption that the applicant was a member of the Great White Brotherhood, the Tribunal found that the applicant did not have a genuine fear of persecution.  The Tribunal concluded that if the applicant had a fear of persecution because of his religion he could have been expected to seek protection when he had the opportunity to do so.  The applicant’s passport disclosed several trips abroad before his trip to Australia including trips to Germany.  The Tribunal did not accept the applicant’s explanation that he would not be safe in other countries in Europe.  At the hearing before me the applicant did not suggest that he would not have been safe in Germany.  Rather he said that he did not wish to live in Germany because, in effect, he did not like the German way of life.  This statement by the applicant does not undermine in any way the reasoning process adopted by the Tribunal.

17. Whilst I do not understand from his application that the applicant claims that the Tribunal erred in proceeding to determine his claims without a hearing, the Tribunal was entitled under s 426A(1) of the Migration Act 1958 (Cth) to proceed to determine the applicant’s claims. As the applicant acknowledged, it had invited him to appear before the Tribunal by despatching an invitation by prepaid post to his residential address.

18. Being satisfied that no error affecting the decision of the Tribunal had been demonstrated, I dismissed the application with costs.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated:            4 June 2004

Counsel for the Applicant:	The Applicant appeared via telephone.
Counsel for the Respondent:	G Johnson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	31 May 2004
Date of Judgment:	4 June 2004