FEDERAL COURT OF AUSTRALIA

NAFL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 297

MIGRATION – protection visa – whether the applicant suffered Convention-based persecution – whether the RRT made an error of law to entitle relief under s 39B of the Judiciary Act 1903 (Cth)

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth) s 91R(1)(a)

Law of Return (Israel)

NAFL v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 1317 OF 2002

HELY J

8 APRIL 2003

SYDNEY

THE COURT ORDERS THAT:

1.         The application is dismissed with costs.

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

REASONS FOR JUDGMENT

1                     This is an application under s 39B of the Judiciary Act 1903 (Cth) for a review of a decision of the Refugee Review Tribunal (“the RRT”) made on 22 October 2002 affirming the decision of the Minister’s delegate not to grant a protection visa to the applicant.

2                     The applicant is a national of Ukraine who claimed that he was of Jewish ethnicity.  That claim was accepted by the RRT. He claimed to have been the victim of verbal abuse on that account since he was at school, and to have been badly treated in the army because of his Jewish ethnicity.  He also claimed to have been the victim of several incidents of violence and intimidation by Ukrainian nationalists as a result of his ethnicity.

3                     The RRT dealt with the applicant’s specific claims of past persecution as follows:

(a)        the RRT accepted that he experienced verbal harassment.  Independent evidence established that violence was endemic in the Ukrainian army, but the RRT did not accept that the applicant was treated in any worse way because he was a Jew;

(b)        the RRT thought it unlikely that the applicant had received threatening letters or had the Star of David painted on his door as the extensive coverage of anti-Semitic incidents in the Ukraine did not mention any such incidents and the applicant was not an active participant in Jewish affairs.  In any event, even if those incidents occurred, the RRT did not accept that such harassment was sufficiently serious as to amount to persecution in the relevant sense;

(c)        the RRT accepted that the applicant had been beaten up by a group of young hooligans in 1997 but it was not satisfied that the “essential and significant motivation” (see s 91R(1)(a) of the Migration Act 1958 (Cth)) was the applicant’s ethnicity;

(d)        the police may have been reluctant, for whatever reason, to treat that incident as an anti-Semitic attack, but on the applicant’s own evidence they did proceed with the investigation of a criminal assault.  The police did not withhold protection from the applicant in relation to this incident, but proceeded with an investigation of the assault on him;

(e)        the applicant’s claim to have been intimidated by the father of one of assailants was unconvincing but, if it occurred, it lacked a specific and anti-Semitic motivation like the original attack.  Any intimidation which occurred was not “essentially and significantly” anti-Semitism, but rather personal and criminal conduct on the part of the father designed to prevent his son’s arrest on quite serious criminal charges of assault;

(f)         the RRT accepted that the applicant and a friend had been assaulted in 1999 by a group of nationalist youths celebrating a nationalist festival.  Whilst this appeared to be an incident of random, in the sense of “unplanned”, violence, perpetrated by a gang of drunken nationalist youths, it appeared to the RRT to have been motivated essentially and significantly by anti-Semitic nationalism.  Given the severity of the attack, and the Convention-based motivation, the RRT accepted that this attack amounted to persecution in a Convention-sense;

(g)        however, the RRT did not accept that the applicant and his friend had been intimidated into withdrawing their complaints to the police in relation to this assault;

(h)        the RRT did not accept the applicant’s claim to have been assaulted in his house in 2000.  The RRT was of the view that the applicant fabricated this claim of an anti-Semitic attack to provide himself with a plausible reason for leaving the country later in 2000.

The RRT was thus satisfied that the applicant had suffered Convention-based persecution on one occasion in the past.

4                     The applicant claimed to have become a Christian after his arrival in Australia.  The RRT considered that the applicant’s adoption of Christianity was opportunistic, having regard to his prior lack of interest in religion, and was for the purpose of ensuring that the applicant could not avail himself of the Israeli Right of Return.  However, the RRT regarded it as doubtful whether the applicant would be accepted by Israel as an immigrant under the Law of Return, and it did not decide the case on the basis that the applicant had third-country protection.

5                     The RRT then considered whether there is a real chance that the applicant would be persecuted if he returns to the Ukraine in the foreseeable future.  It did so upon the basis of extensive independent information available to the RRT on the treatment of Jews in the Ukraine.  The RRT came to the following conclusions:

            (a)        while anti-Semitism has had a long history in the Ukraine, the weight of evidence from human rights groups, including specifically Jewish organisations, is that anti-Semitism is decreasing, and more importantly that government action against anti-Semitism is increasing;

            (b)        anti-Semitic acts continue to occur in parts of the Ukraine, but Jewish persons are not systemically persecuted, harassed or targeted in Ukraine by official groups or persons of authority.  Manifestations of anti-Semitism which do occur are generally restricted to “less serious” acts, such as verbal abuse.  Implementation of protection for Jewish people is “variable”, depending on the motivation and circumstances of individual law enforcement officers;

            (c)        it may be the case that acts of random violence by ultra-nationalist youths or simply criminal gangs of the kind to which the applicant has been subjected in the past will occur again.  However, the Convention is not directed against the failure of a country to protect its citizens against random criminal behaviour or a failure to act on insufficient evidence;

            (d)        should the applicant face Convention-based persecution, he will be able to avail himself of adequate state protection; and

            (e)        there is not a real chance that the applicant will be persecuted for reasons of his Jewish religion or ethnicity if he returns to the Ukraine within the foreseeable future.

The applicant’s submissions

6                     The applicant appeared in person, without the benefit of legal assistance, but with the aid of an interpreter.  Under cover of a letter from the applicant’s migration agent to the RRT dated 7 October 2002 the applicant submitted a number of documents from the Union of Councils for Soviet Jews which gave instances of anti-Semitic conduct which had recently occurred in the Ukraine.  The applicant submitted that the RRT had failed to take these documents into account in coming to its decision.

7                     There is no substance in this submission.  The RRT made specific reference to these documents in the section of its reasons headed “Claims and Evidence”.  The RRT also referred to the documents in the section of its reasons headed “Findings and Reasons” in the context of explaining why the RRT did not accept the applicant’s claim that in early 2000 he was assaulted in his house by a group of people.

8                     Clearly, the RRT did not fail to take these materials into account in the sense that it either overlooked or ignored them.  It was a matter for the RRT to decide what weight should be given to the materials which it had before it in relation to anti-Semitism in the Ukraine in making findings of primary fact as to whether the incidents of past persecution of which the applicant had complained had occurred and whether persecution for a Convention-based reason was likely to occur in the future.

9                     Ultimately, the RRT came to the conclusion that it was unlikely that the applicant would be persecuted in the future for  Convention-based reasons, but should the applicant face Convention-based persecution he will be able to avail himself of adequate state protection.  These are matters which are within the primary fact finding function of the RRT.  Even if the RRT wrongly found the facts it does not follow that the RRT had committed a legal error or that its decision is invalid so as to enliven the jurisdiction of the Court under s 39B.

10                  The applicant made a number of other claims in his application to the Court.  Although these claims were not the subject of any oral submission, I have assumed that the applicant wishes to persist with them.  They are dealt with in the succeeding paragraphs.

11                  Paragraph 1 of the application asserts that the RRT appears not to be well-informed about certain matters.  Even if that were so, it is a complaint which goes only to the merits of the decision.  Even if the complaint were established, it would not found relief under s 39B.

12                  Paragraph 2 of the application complains that the RRT accepted evidence that anti-Semitism was decreasing, whilst also accepting the applicant’s evidence that the police would not accept his claim that the 1997 attack on him was anti-Semitic.  This is said to provide explicit evidence of the government’s policy to cover up racially-based incidents of violence so that Ukraine will look good in the eyes of the West.  This complaint appears to accuse the RRT of inconsistency in accepting contradictory pieces of evidence.  There is no such inconsistency.  The applicant’s claim that the police did not wish to regard the attack on him as anti-Semitic in nature was not evidence from which one could conclude that there was a systematic effort by the Ukrainian authorities to cover up incidents of anti-Semitism.  Even if there were an inconsistency in the RRT’s reasoning process in relation to its findings of primary fact, this would not constitute an error of law, let alone one going to the jurisdiction of the RRT.

13                  Paragraph 3 of the application complains that the RRT quoted a report on religious freedom, whereas the applicant’s claim was that he had been persecuted for ethnic, rather than religious reasons.  The report dealt with anti-Semitism.  The RRT was entitled to rely upon it in forming a view about the prevalence of anti-Semitism in the Ukraine even if the report had been prepared for the purpose of addressing issues of religious freedom.

14                  Paragraphs 4 and 5 of the application assert that in rejecting some of the applicant’s claims, the RRT relied on reports which did not in truth deal with the particular issues in question.  As to par 4 the RRT’s point was simply that none of the materials to which it referred supported the applicant’s claim to have been attacked in his home.  As to par 5 the documents relied upon by the RRT did support the inference that recruits in the army were liable to be subjected to violence regardless of their background.  In any event, each of these complaints rises no higher than an assertion that the RRT has misunderstood the import of particular pieces of evidence.  That does not constitute an error of law let alone jurisdictional error.

15                  Paragraph 6 of the application asserts that the RRT was mistaken in categorising the 1997 attack on the applicant as merely criminal because it would have been obvious to the attackers that the applicant was a Jew.  Again, this is a complaint as to an error in the primary fact finding of the RRT which, even if made out, would not entitle the applicant to relief under s 39B.

16                  Paragraph 7 asserts that the RRT was inconsistent, or worse, in treating the 1997 attack as simply criminal while accepting that the 1999 attack had an anti-Semitic motivation.  There is no inconsistency between the two sets of findings.  In the case of the 1999 attack, the RRT had the applicant’s express claim that he was with a friend who was of Jewish appearance.  That provided a basis for the RRT to accept that the attack could have been motivated by a perception that the friend (and therefore also the applicant) was Jewish.  In the RRT’s view, there was no sufficient basis for a similar conclusion in relation to the 1997 attack.  Even if there were an inconsistency between the two sets of findings that would not be sufficient to entitle the applicant to relief under s 39B.

Conclusion

17                  The application is dismissed with costs.

Associate:

Dated:              8 April 2003