FEDERAL COURT OF AUSTRALIA

NAGA of 2002 v Minister for Immigration & Multicultural &

Indigenous Affairs [2002] FCA 724

APPLICANT NAGA OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 304 OF 2002

EMMETT J

30 MAY 2002

SYDNEY

THE COURT ORDERS THAT:

1.         the application be dismissed; and

2.         the applicant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

1                     I have before me an application for an extension of time in which to file and serve a notice of appeal from the orders of Sackville J made on 29 October 2001.  By those orders, Sackville J dismissed an application for an order of review brought by the applicant in respect of a decision of the Refugee Review Tribunal (“the Tribunal”).  The applicant is a Russian citizen who, accompanied by his wife and child, arrived in Australia on 14 September 1999.  On 26 October 1999, the applicant, his wife and child, applied for protection visas under the Migration Act 1958 (Cth) (“the Act”).  Those applications were refused by a delegate of the respondent, the Minister for Immigration and Multicultural Affairs (“the Minister”) on 20 December 1999.  Following an application for review of that decision by the Refugee Review Tribunal (“the Tribunal”), the Tribunal affirmed the delegate’s decision.  The application then sought review of that decision by this Court.

2                     Sackville J recorded the findings made by the Tribunal that the applicant has a qualification both as a technician and customs officer.  In 1997 the applicant took up a position as commercial director of a corporation owned by a Mr Kim in St Petersburg.  The applicant claimed that Mr Kim had extensive connections to Russia's political financial elite.  He said that, by February 1999, he had become aware that Mr Kim's corporation had provided large amounts of money for candidates seeking election, particularly a Vice-Governor of the St Petersburg region.

3                     In the following month, March 1999, the applicant wrote an anonymous letter to the St Petersburg taxation office and taxation police.  That letter disclosed material identifying organisations operating as covers for the political forces of the St Petersburg region.  The applicant claimed that, as a result of those circumstances, he became extremely concerned for his own safety, and that of his wife and daughter, following threats by Mr Kim.  The Tribunal described his central claim as a fear that he would suffer serious harm through the actions of the Vice-Governor, other people in power in the St Petersburg and the north-western regions of Russia.  His fear was that his actions against Mr Kim had potentially powerful repercussions for people such as the Vice-Governor and his associates. 

4                     Sackville J observed that while the Tribunal found that the applicant was generally truthful and credible in his oral evidence the applicant’s claims about the harms he feared were overstated and exaggerated.  The Tribunal accepted independent evidence to the effect that high levels of political and bureaucratic corruption continued to exist in Russia.  However, the Tribunal did not accept the applicant's claim that he faced persecution in Russia because of the particular low-level action he took in support of democracy.  The Tribunal considered that it was significant that the applicant had left Russia without any difficulties. 

5                     The Tribunal also considered that it was relevant that the applicant had travelled to Finland before departing Russia for Australia and to Holland en route to Australia but did not apply for refugee status in either of those countries.  The Tribunal concluded that the applicant did not have a well founded fear of persecution for a Convention reason.  After examining the reasons of the Tribunal his Honour concluded that there was no reviewable error on the part of the Tribunal.

6                     The application for an extension of time within which to lodge an appeal was filed on 15 April 2002.   The applicant, in an affidavit of 15 April 2002, attached a draft notice of appeal, the grounds of which are as follows:

“The Tribunal failed to establish significance of the appellant’s claims related to persecution of his family members which led to its conclusion that the threats the appellant had been subjected to were not sufficiently serious.”

Attached to that affidavit is a letter addressed to the Court which sets out what appears to be the substance of the applicant’s concern in relation to his proposed appeal.  The letter makes the following assertions:

“1.       On 12 March 2002 I received a lettergram from St Petersburg.  I was informed that my sister had been attacked and died in hospital on 5 March 2002…  The shocking tragic and unbelievable news is another compelling evidence that my fear is well founded.  This fact also serves as an absolute evidence of the Tribunal’s failure to establish significance of my claims regarding persecution of members of my family.”

7                     The documents attached to that letter included Russian versions and English translations of a certificate of death and notification that a decision was made to open a criminal case.  That material indicates most shocking circumstances concerning a close member of the applicant’s family.  In relation to those matters the Court has the utmost sympathy for the applicant and his family in relation to the loss that he has suffered.

8                     However, those facts have no bearing on the power of the Court in relation to the appeal that the applicant seeks to bring.  The tragic circumstances of the applicant’s sister’s death occurred on 5 March 2002.  Those facts are not material or relevant to the decision of the Tribunal.  Accordingly, they have no bearing on the possible outcome of an appeal. I am not persuaded that there is any suggestion of error on the part of Sackville J in his reasons of 29 October 2001.  Accordingly, there would be no utility in extending the time within which to file a notice of appeal.  The filing of the notice of appeal would simply involve additional costs for which the applicant would ultimately be responsible.  Accordingly, I propose to reject this present application. 

9                     However, I will make brief comments on two matters.  First, it would be open to the Minister to permit a further application to be made for a protection visa under s 48B of the Act.  That power may only be exercised by the Minister personally.  I have no material before me to suggest that any application is likely to succeed, but I draw the provision of that section to the attention of the applicant.

10                  Secondly under s 417 of the Act, if the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal another decision, being one that is more favourable to an applicant.  It is possible that, having regard to the fresh circumstances to which I have referred concerning the tragic death of the applicant’s sister, the Minister may be prepared to entertain an application pursuant to s 417 of the Act.  It is not my function, of course, to express any view as to whether any application has any prospects of success, but I mention the matter to enable the applicant to take such steps as he thinks appropriate in relation to that matter.

Associate:

Dated:              4 June 2002