Applicants M293 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 179 (21 February 2006)

Last Updated: 8 March 2006

FEDERAL COURT OF AUSTRALIA

Applicants M293 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 179

APPLICANTS M293 OF 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
VID1255 OF 2005

WILCOX J
21 FEBRUARY 2006
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID1255 of 2005

BETWEEN:	APPLICANTS M293 OF 2003 APPELLANTS
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	21 FEBRUARY 2006
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellants pay the costs of the first respondent.













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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID1255 of 2005

BETWEEN:	APPLICANTS M293 OF 2003 APPELLANTS
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT

JUDGE:	WILCOX J
DATE:	21 FEBRUARY 2006
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

WILCOX J:

1 This is an appeal against a decision of Federal Magistrate O’Dwyer in an application that was initiated in the High Court of Australia and ultimately transferred to the Federal Magistrates Court. The learned Federal Magistrate held that no jurisdictional error by the Refugee Review Tribunal (‘the Tribunal’) had been demonstrated. The Tribunal had decided, on 7 November 2003, to affirm a decision of a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’), to refuse to grant protection visas to three people, being husband, wife and daughter. It is not necessary for me to set out the facts of the case, or to refer in any detail to the decision of the learned magistrate.

2 Pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth), the Chief Justice directed that this appeal be heard and determined by a single judge.

3 The husband, whom for convenience I will call ‘the appellant’, appeared today, assisted by an interpreter. He sought an adjournment, saying that he wished to retain a barrister to represent him. I refused this application. The appellant has had ample time to arrange representation, if he had wished to do so.

4 Before the magistrate, also, the husband had appeared in person, assisted by an interpreter. He presented a number of issues to the magistrate for determination. They were all dealt with, in comprehensive reasons for judgment delivered on the day of hearing.

5 Subsequently, it appears, the appellant obtained legal advice. Although the notice of appeal to this Court was filed by the appellant personally, he told me today that it had been prepared by a lawyer. Submissions prepared by the lawyer were also filed by the appellant.

6 When I called upon the appellant today, he spent some time referring to the facts of the case. He plainly feels the Tribunal made incorrect findings of fact. I explained to him that the Court has no jurisdiction to review the Tribunal’s findings of fact. I asked the appellant whether he wished to address the issues raised by the notice of appeal, most of which, if correct, would lead to a finding of jurisdictional error. The appellant replied that he wished to rely on the written submissions that had been prepared by his lawyer.

7 The written submissions raise two issues. The first issue is whether the Tribunal denied procedural fairness by failing to provide the appellants with sufficient time to obtain certain further documents. The submissions identify the documents.

8 The same argument was put to the learned magistrate. The magistrate thought there was no substance in it. He pointed out that a period of about three years had elapsed from the time that the appellants applied for a protection visa until the hearing before the Tribunal. The magistrate thought this provided ample time to obtain the necessary documents, especially since the appellant was represented during that time by a solicitor who was also a migration agent. Apparently, that person attended the Tribunal hearing with the appellant. The magistrate also noted there was no indication that the appellant had requested the Tribunal to withhold its decision pending provision of further material; this despite the fact that the appellant had been permitted to lodge submissions after the hearing, and had done so. The magistrate said:

‘In the circumstances, it is not possible to understand how the applicants contend that they were in any way denied a reasonable opportunity to present their case to the Tribunal.’

I respectfully agree. I think there is nothing in this point.

9 The second argument is that the Tribunal failed to take into consideration the reason why the appellant’s brother-in-law departed Sri Lanka and how he did so. I find this claim almost incomprehensible, in light of the Tribunal’s reasons for decision. Without going into the facts in any detail - I think it is undesirable to do that - the brother-in-law's story permeates the whole of the Tribunal’s reasons: in the Tribunal’s recounting of the terms of a statutory declaration filed by the appellant in support of his claim to refugee status, the evidence at the Tribunal and the Tribunal’s findings of fact. Any reader of the Tribunal's decision would regard it as abundantly clear that the Tribunal understood the situation in which the brother-in-law was placed, and the reasons why he thought it desirable to absent himself from Sri Lanka.

10 I do not understand what the appellant intends to convey by his reference to how the brother-in-law left Sri Lanka. The brother-in-law’s method of departure does not seem to have been the subject of evidence before the Tribunal. Nor does it seem to matter. The fact is that there was good reason for the brother-in-law to depart Sri Lanka, and the Tribunal fully understood this.

11 The appellant has not sought to support the other grounds of appeal set out in the notice of appeal. All of these points were carefully considered by the learned magistrate and I respectfully agree with his reasons. I have considered the decision of the Tribunal for myself, having regard to the fact that the appellant is not legally represented. I see no basis for imputing jurisdictional error to the Tribunal.

12 The appeal will be dismissed with costs.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated: 8 March 2006

The Appellant appeared in person.
Counsel for the Respondent:	Mr R Knowles
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	21 February 2006
Date of Judgment:	21 February 2006