FEDERAL COURT OF AUSTRALIA

Soudakov v Minister for Immigration & Multicultural Affairs

[2001] FCA 993

Migration Act 1958 (Cth)

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1

MAXIM SOUDAKOV and PAVEL SOUDAKOV (by their next friend SVETLANA SOUDAKOV) v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 439 OF 2001

GYLES J

SYDNEY

23 JULY 2001

THE COURT ORDERS THAT:

The application be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT (EX TEMPORE)

1                     This is an application for an order of review of a decision of the Refugee Review Tribunal (“the Tribunal”) on 5 March 2001, notified on 30 March 2001, to affirm the decision of the delegate of the respondent to refuse to grant the applicants a protection visa.  This is an unusual case.  The applicants are infants.  They were born in Australia in 1994 and 1997.  Their parents and elder brother, who are from Russia, had made unsuccessful protection visa applications in 1992, having arrived in Australia in 1991.  The result of those applications was  not finalised until 1997.  Thus the applicants were born in Australia during the pendency of unsuccessful protection visa applications by their parents.   I do not know why there was such gross delay in dealing with these matters but I need not labor the wholly undesirable results. 

2                     The applicants, by their next friend their mother, made their own applications for protection visas on 9 November 1999 which were refused by a delegate of the respondent on 1 December 1999.  The applicants applied to the Tribunal for a review of those decisions.  During the course of the review, the Tribunal held a hearing at which the applicants’ mother, their adviser and the local Archbishop of the Russian Orthodox Church Abroad were present.  The Tribunal considered the claims made by the applicants but, because of their age, of necessity considered that in practice their claimed refugee status would depend, in effect, upon the position of their parents.

3                     The Tribunal considered the factual material put before it and worked on the assumption that, because of their parentage, each of the applicants would have a right to return to Russia.  The Tribunal concluded that the chance of the applicants experiencing persecution because of religious beliefs or ethnicity of the parents or themselves was remote. 

4                     The first ground of the application before the court is that procedures that were required by the Migration Act 1958 (Cth) (“the Act”) to be observed, were not observed: being a reference to s 476(1)(a) of the Act.  This ground was only briefly mentioned by the applicant's next friend and cannot succeed in the face of the High Court decision in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1.  The second ground of the application was that the Tribunal’s decision involved an error of law, being an error involving the incorrect interpretation of the law as per s 476(1)(c) of the Act.  No separate argument has been directed to that issue and I can see no proper basis for finding any such error. 

5                     The third ground was that there was no evidence or other material to justify the making of the decision, which relies upon ss 476(1)(g) and 476(4)(b) of the Act.  As the applicant's next friend was unrepresented, there was little that she could usefully put in her submissions to me.  The essence of what she had to say was that the Tribunal ignored the statement of the Archbishop, who she said possessed more information about the situation in Russia than anyone else.  Instead the Tribunal was alleged to have acted upon other more unreliable material which, she said, must have meant some change in the treatment of religious organisations which was not justified.  She also submitted that the Tribunal did not take into account the particular facts of the case for the applicants, as both applicants were born in Australia:  because of the time they lived in the Australia they lost their rights to live in Russia and to be registered in Russia. 

6                     Counsel for the respondent points out that the Tribunal did not ignore the statement of the Archbishop:  it chose to not fully accept that statement, bearing in mind other evidence and information which it preferred.  That was a course which was open to the Tribunal and this court does not have any role in reviewing findings of fact by the Tribunal.  There was information before the Tribunal which could have been accepted which would raise the risk of religious persecution.  The Tribunal did not choose to accept it.  There is, I think, nothing to indicate that the Tribunal did not appreciate the particular position of the applicants.  I should stress that what was before the Tribunal was an application for a protection visa and not any other issue.  I say that because, in the unusual circumstances of this case, and bearing in mind the position of the infants, I referred the matter for legal advice pursuant to O 80 of the Federal Court Rules.  I am informed that there may be some basis upon which the applicants may be entitled to Australian citizenship.  I do not know what that means in terms of the applicants’ rights to stay in Australia.  That is not an issue which is before me and it was not an issue which was before the Tribunal in the way in which the matter was presented to the Tribunal andto this Court.

7                     In all the circumstances, bearing in mind the limitations upon the role of the court pursuant to s 476 of the Act, I find that the bases for the application are not established.  I dismiss the application. 

8                     I think the proper course, bearing in mind that the next friend brings these cases on behalf of infants, is to make no order as to costs.

Associate:

Dated:              27 July 2001