Nicholova, S. v The Minister for Immigration, Local Government & Ethnic Affairs

[1992] FCA 936

6 52

JUDGMENT No. .%.......I .W ...... M

/ )

IN THE FEDERAL COURT OF AUSTRALIA	)
VICTORIAN DISTRICT REGISTRY	) No. VG 428 & 429 1992
GENERAL DIVISION	)
B E T W E E N :

MISS SLAVIANKE NICHOLOVA

&

MISS VENERE NICHOLOVA

Applicants

A N D:

11 DEC 1992	First Respondent
AUSTRALIA	A N D:
PRINCIPAL
REGISTRY

NOEL BARNSLEY

Second Respondent

JUDGE MAKING ORDER	KEELY J
PLACE ORDER MADE	MELBOURNE

Order 36 of the Federal Court rules.

General Distribution not reauired

DATE ORDER MADE	24 NOVEMBER 1992
THE COURT ORDERS THAT:

1.   The applicant's motion for an interlocutory injunction be dismissed.

2.  Paragraph 1 of the orders made by Heerey J. on 13 November 1992 be discharged.

3.    Costs of the respondents reserved.

Note :  Settlement and entry of orders is dealt with in

IN THE FEDERAL COURT OF AUSTRALIA

)

VICTORIAN DISTRICT REGISTRY

)	No. VG 428
)	& 429 1992

GENERAL DIVISION

)

B E T W E E N :

MISS SLAVIANKE NICHOLOVA

&

MISS VENERE NICHOLOVA

Applicants

A N D:

THE MINISTER FOR

First Respondent

NOEL BARNSLEY

Second Respondent

REASONS FOR JUDGMENT

(Delivered ex tempore - revised from transcript)

24 November 1992 KEELY J .

Miss Slavianke Nicholova and Miss Venere Nicholova ("the applicants") have each moved for an interlocutory injunction restraining the two respondents, namely, the Minister for Immigration, Local Government and Ethnic Affairs ("the Minister") and Mr Noel Barnsley ( "the delegate" ) "from removing the applicants from the territory of the Commonwealth of Australia". The applicants are of Bulgarian nationality but of Macedonian ethnicity. The two applications were heard together.

In the respondents' outline of contentions it was submitted that the applicants have not shown a serious question to be tried as to whether there was any "error of the type reviewable pursuant to the ADJR Act".

Last Friday I heard the applicants' counsel address in support of their motions (pp. 9-38 of the transcript). Today he has examined the material carefully in an address of almost 2 hours. Since Friday I have carefully studied: (1) all of the transcript of his address (2) the two affidavits sworn by Mr. Krohn and, in particular, his undated affidavit, filed on 16 November 1992, and the exhibits to it, including his letter to the Minister's Department, dated 2 November, 1992 (3) the further and better particulars filed by the applicants on 16 November 1992 (4) the reports of the interviews of each applicant, conducted on 7 November 1992, through an interpreter. (5) the affidavit of Dr. Seth-Purdie, the chairperson of the Refugee Status Review Committee and, in particular, paragraphs 10-14 of that affidavit, which dealt with the conduct of the two interviews and also with later communications with Mr. Krohn, the applicant's solicitor (6) the delegate's reasons, dated 12 November 1992, for the

decisions refusing the two applications for refugee status,	and (7) the outlines of argument furnished last Friday by
counsel for the applicants and by counsel for the respondents.
In my opinion the respondents' submission that there is no serious question to be tried in either matter must be upheld. I have not been persuaded that there has been any error of law by the delegate.
In Chan v. Minister for Immiaration, Local Government and Ethnic Affairs (1989) 169 CLR 379 Mason C. J. said at 388:-

"The delegate was no doubt right in th~nkrng that

some forms of selective or d~scriminatory treatment by a state of rts citizens do not amount to persecution. When the convention makes provision for the recognition of the refugee status of a person who 1.8 owing to a well-founded fear of being persecuted for a convention reason unwilling to return to the country of his natronality the convention necessarily contemplates that there is a real chance that the applrcant will suffer some serious punishment or penalty or some significant detriment or drsadvantage zf he returns.

Obviously harm or the threat of harm as part of a course of selective harassment of a person, whether znd~vldually or as a member of a group subjected to such harassment by reason of membership of the group, amounts to persecut~on if done for a convention reason.

The denial of fundamental rights. or freedoms otherwise enjoyed by nationals of the country concerned may constitute such harm, although I would not wish to express an oprnion on the question whether any deprivat~on of a freedom traditionally guaranteed in a democratic society would constrtute persecution if undertaken for a conventzon reason."

Applying that statement to the material before the delegate, in my opinion there is no serious question to be tried as to whether it was open to the delegate, on the material before him, to reach the conclusions set out in his reasons for decision.

It is neither necessary nor desirable that I should refer in any detail to the evidentiary material before the delegate, but I shall make some general comments. The various	allegations as to events in Bulgaria, made by the applicants	and also by their solicitor on their behalf, were couched in
somewhat vague tens, which were at times not consistent with other statements made by them, and which were often quite unclear as to matters which were important to their cases.
Without attempting to be exhaustive, the following are given as examples where their meaning and/or significance was not clear: (1) as to what "political opinions" each applicant held at particular times (2) as to whether any such opinions were known to their alleged "persecutors" (3) as to the approximate dates when they held any such opinions and, if so, the dates when those opinions became known to any alleged "persecutors" (4) as to approximately when any changes occurred in those political opinions and, if so, the nature of those changes (5) as to what election campaigns or other political events were occurring in Bulgaria at or about the time of any such changes in their opinions (6) as to what actions were taken against them in relation to matters such as their education and their work (7) as to approximately when those actions occurred, and (8) as to what body, association or organisation (if any) was responsible for any such actions being taken against them.
The material before the delegate as to the matters relied upon by the two applicants was surprisingly unclear - notwithstanding that the applicants had the benefit of a solicitor acting for them, who made representations to the Minister on their behalf, who was present at their interviews, was supplied with summaries of those interviews and stated that he was happy with those summaries.
The way in which the case was put to the delegate by the applicants may be illustrated by two answers by Miss Slavianke Nicholova, in her interview on 7 November 1992. In answer to the question "Why did you come to Australia" she said, after consultation with her solicitor, Mr Krohn:-

work in Bulgaria is against human rights and I am	"I believe the fact that I won't be able to find
sure that if I don't get work I won't have any social benefits".

Earlier in the interview she was asked:-

Why don't you wish to return to Bulgaria? What would happen to you?---If I am sent back to Bulgaria I know I won't be able to find work because Bulgaria is suffering enormous economic and political crisis and first anti-communist government of Dimitrov has been defeated. They'll have to be new elections for a new government which means the Macedon~an queet~on will not be regarded

as important.

Another reason for not find a job: The only people dorng well are those involved wrth drrty communist money. I am a writer and I don't have any money to publish. If eventually my father helps, the company which rs going to publish my work will be bankrupt and I will lose money.

The worst is that in Bulgarra there are nationalrstic (Fascrst) groups who are working - I can't say rt is the government - but I'm afrard they will k ~ l l me. I'm really playing with words here: There are different ways of being frightened. I am not afraid to die; I am afraid I will be wiped out as a person.''

As I have already said, in my opinion there is no serious question to be tried. The applications for interlocutory injunctions must be dismissed.

In matter VG 428 of 1992 and in matter VG 429 of 1992 the orders in each case will be that:-

1.   The applicants' motion for an interlocutory injunction be dismissed.

2.    Paragraph 1 of the orders made by Heerey J. on 13 November 1992 be discharged.

3.    Costs of the respondents' reserved.

I certify that this and the

preceding four (4) pages are a true copy of the Reasons for Judgment of M r Justice Keely.

Associate:
Dated: 24 November 1992.

Counsel for the Applicants	Mr A. Hands
Solicitors for the Applicants	Elizabeth Lee & CO
Counsel for the Respondents	Mr R. Huttner
Solicitors for the Respondents	Australian Government Solicitor
Dates of Hearing	20, 24 November 1992
Date of Judgment	24 November 1992