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MIGRATION - Appeal from single Judge - no grounds for appeal specified - no reviewable error

WAFB v Minister for Immigration and Multicultural and Indigenous Affairs [2

WAFB v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 278 (22 August 2002)
Last Updated: 9 September 2002


FEDERAL COURT OF AUSTRALIA
WAFB v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 278


MIGRATION - Appeal from single Judge - no grounds for appeal specified - no reviewable error

Judiciary Act 1903 (Cth) s 39B

WAFB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIR

W 60 OF 2002

HILL, TAMBERLIN AND HELY JJ

PERTH

22 AUGUST 2002

IN THE FEDERAL COURT OF AUSTRALIA



WESTERN AUSTRALIA DISTRICT REGISTRY
W 60 OF 2002





ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
WAFB

APPELLANT


AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT


JUDGES:
HILL, TAMBERLIN AND HELY JJ


DATE OF ORDER:
22 AUGUST 2002


WHERE MADE:
SYDNEY




THE COURT ORDERS THAT:

1. The appeal is dismissed.

2. The appellant pay the respondent's costs of the appeal.

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

IN THE FEDERAL COURT OF AUSTRALIA



WESTERN AUSTRALIA DISTRICT REGISTRY
W 60 OF 2002





ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
WAFB

APPELLANT


AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT




JUDGES:
HILL, TAMBERLIN AND HELY JJ


DATE:
22 AUGUST 2002


PLACE:
SYDNEY





REASONS FOR JUDGMENT
HILL J:

1 The appellant appeals from a judgment of RD Nicholson J in which his Honour dismissed his application for review of a decision of the Refugee Review Tribunal, ("the Tribunal"), which affirmed the decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") refusing the issue of a protection visa. The details of the appellant's claims are summarised by RD Nicholson J in his reasons for judgment and need not be repeated.

2 In summary, the Tribunal did not accept the various claims that the appellant had made and in consequence found that he did not have a well-founded fear of persecution such as to qualify him as a refugee under the provisions of the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 ("the Convention").

3 The application to the Court before RD Nicholson J was taken by his Honour as being an application pursuant to s 39B of the Judiciary Act 1903 (Cth) ("the Judiciary Act") taking into account the relevant amendments made to the Migration Act 1958 (Cth) ("the Act") by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth).

4 His Honour noted in his reasons that the appellant (the applicant before him) was unrepresented by a lawyer and lacked legal skills. It was understandable, his Honour said, that he would not be able to bring before the Court matters of law in which the Tribunal had erred. In particular his Honour pointed out that the appellant did not understand the distinction between matters of fact and matters of law and it is evident from his Honour's judgment that he was of the view that the appellant had not made out a case for relief under s 39B of the Judiciary Act. In that circumstance the Tribunal's decision, being a privative clause decision in accordance with s 474 of the Act, was final and conclusive and this Court had no jurisdiction to review it.

5 Before this Court the appellant referred to two summonses addressed to witnesses and referring to proceedings in Sri Lanka. He said that the summonses clearly showed that he had a real fear of persecution. The summonses were both documents which came into his possession well after the proceeding before the Tribunal and probably in fact only came into existence at a time after that proceeding.

6 It is not surprising that the appellant, not being a lawyer, does not understand the nature of judicial review. At the very least, for him to have succeeded in this Court it would be necessary to show a legal error on the part of the Tribunal. It could not be a legal error of the Tribunal not to take into account material which it never saw. If, as the appellant says, the material does prove his case, then it is open to him to approach the Minister or his delegate and seek to have the Minister examine the matter afresh. This Court cannot take that matter into account in these proceedings.

7 It may well be, as I understand it, that RD Nicholson J also refused to accept a tender of these documents. If that is the case, his Honour rejected the documents correctly.

8 The appellant also requested that the Court order that the Minister repatriate him to a place where he was not in danger if the Court would not remit the matter to the Tribunal. Again this is a matter that the appellant may take up with the Department of Immigration and Multicultural and Indigenous Affairs ("the Department"), but it is not a matter on which the Court could rule.

9 I have carefully read the decision of the Tribunal and the decision of RD Nicholson J and can see no error in either of them. There being no submission put to the Court which demonstrates either that the Tribunal committed a jurisdictional error or other reason why relief should be granted, I would dismiss the appeal. The order I would propose therefore is that the appeal be dismissed and that the appellant pay the Minister's costs of the appeal.

TAMBERLIN J:

10 I agree with the reasons and with the conclusion and the orders proposed by the presiding Judge. I would note that in the notice of appeal there is no identification of any reviewable error. There is simply a statement that the appellant is fearful for his life because if he goes back to Sri Lanka, he will be in danger, but there are no grounds specified which would amount to any reviewable error.

11 I would also add that in the course of his case, the appellant referred to an article in a newspaper which appears to be written in the Tamil language. This was material which was before the Tribunal as it is included in the appeal papers and it cannot be concluded in any way that this was ignored by the Tribunal. In any event, there did not appear to be any translation of this article to the Tribunal. In all the circumstances I am satisfied that no case of reviewable error has been made out.

HELY J:

12 I agree with the orders proposed by the presiding Judge for the reasons given by him.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Hill, Tamberlin and Hely.




Associate:

Dated: 9 September 2002

The Appellant appeared on his own behalf.







Counsel for the Respondent:
Mr J D Allanson






Solicitor for the Respondent:
Australian Government Solicitor






Date of Hearing:
22 August 2002






Date of Judgment:
22 August 2002


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