Applicant M20/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 539 (28 April 2006)

FEDERAL COURT OF AUSTRALIA

Applicant M20/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 539

APPLICANT M20/2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL
VID 614 of 2005

GRAY J
28 APRIL 2006
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 614 of 2005

BETWEEN:	APPLICANT M20/2003 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT
JUDGE:	GRAY J
DATE OF ORDER:	28 APRIL 2006
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the first 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
VICTORIA DISTRICT REGISTRY	VID 614 of 2005

BETWEEN:	APPLICANT M20/2003 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT

JUDGE:	GRAY J
DATE:	28 APRIL 2006
PLACE:	MELBOURNE

1 This appeal is from a judgment of the Federal Magistrates Court, published as M20 of 2003 v Minister for Immigration & Anor [2005] FMCA 902. The federal magistrate dismissed an application by the appellant, seeking relief in respect of a decision of the Refugee Review Tribunal (‘the Tribunal’), dated 30 August 2001 and handed down on 21 September 2001. The proceeding before the Federal Magistrates Court had been remitted from the High Court of Australia to this Court, and from this Court to the Federal Magistrates Court.

2 The appellant is a citizen of India, who arrived in Australia on 12 September 1996 in possession of a student visa. After a renewal of that student visa in 1998, the appellant applied for a protection visa on 26 June 2000. A delegate of the first respondent, then the Minister for Immigration and Multicultural Affairs, and subsequently the Minister for Immigration and Multicultural and Indigenous Affairs, and now again the Minister for Immigration and Multicultural Affairs (in all cases, ‘the Minister’) refused the application for a protection visa. The appellant sought review of that decision by the Tribunal. The Tribunal conducted a hearing, at which the appellant gave evidence to it. Its decision was that the Tribunal was not satisfied that the appellant was a refugee, and the Tribunal affirmed the decision not to grant a protection visa.

3 After some significant delay, the appellant applied to the High Court, seeking to set aside the Tribunal’s decision and to have the matter reheard by the Tribunal, differently constituted. Once the matter had been remitted via this Court to the Federal Magistrates Court, the appellant filed an amended application, seeking relief in the exercise of the jurisdiction conferred on that court by s 483A of the Migration Act 1958 (Cth) (‘the Migration Act’). In relation to matters arising under the Migration Act, that jurisdiction is identical to that conferred on this Court by s 39B of the Judiciary Act 1903 (Cth).

4 In that amended application, the appellant made it fairly clear that he wished to assert that some of the factual conclusions of the Tribunal were incorrect.

5 The federal magistrate took the view that, in reality, the appellant’s challenge to the Tribunal’s decision was based on issues of fact, and that the Federal Magistrates Court had no jurisdiction to review the decision on the merits. In substance, this constituted the reasons of the federal magistrate for dismissing the amended application.

6 In his notice of appeal to this Court, the appellant raises no matter of substance, simply contending that he disagrees with the judgment of the Federal Magistrates Court, and alleging both substantive and procedural errors in that court’s decision. No particulars are given. In a directions hearing in the course of managing the appeal, I made an order giving the appellant leave to file an amended notice of appeal. That order was made on 8 August 2005. No amended notice of appeal has been filed.

7 I have examined the reasons of the Tribunal in detail myself. The Tribunal made four crucial findings of fact against the appellant, based partly on his own evidence and partly on material that the Tribunal had gathered from its own research, including research on the internet. The Tribunal viewed the appellant’s claim for a protection visa as based on his claim of a well-founded fear of persecution, if he should return to India, for reasons of his political opinion and his religion.

8 Although the Tribunal accepted that the appellant had been an active member of, and campaigner for, the Congress I Party, its first finding was that he would not suffer serious harm as a consequence of his political activities or political opinion. Its second finding was that he would not suffer serious harm because of being a Christian. To the extent to which the appellant had complained of treatment he had received in the past by reason of his political affiliation and activities, and by reason of his religion, the Tribunal took the view that he had not suffered harm serious enough to amount to persecution and would not do so in the future. The third significant finding that the Tribunal made was that, if the appellant should be threatened or harmed, it would be open to him to seek the protection of the police and the authorities, and that such protection was available to him. The fourth crucial finding was that, if he were to suffer persecution or to be liable to persecution in the area of his original home in India, the appellant could easily move to another part of India, where he would be safe.

9 The four findings were, of course, absolutely fatal to the appellant’s case, and it is not surprising that the appellant would seek to have them changed. Regrettably, it was no part of the function of the Federal Magistrates Court, and is no part of the function of this Court, to assess whether the Tribunal’s findings ought to have been made. The function of a court exercising jurisdiction of the kind conferred in relation to matters arising under the Migration Act is, in effect, to conduct judicial review. Only if the court finds that the Tribunal’s decision is flawed by jurisdictional error can the court grant relief which would have the effect of setting aside that decision and requiring the controversy to be dealt with again by the Tribunal.

10 The appellant did not persuade the Federal Magistrates Court that there was jurisdictional error, and has not persuaded me that there was jurisdictional error either. I have examined the reasons of the Tribunal in detail for the purpose of determining whether I could detect something that might amount to jurisdictional error. I have been unable to find any such thing.

11 In the course of argument today, the appellant has put to me an argument that he concedes was not put before the Federal Magistrates Court. He has alleged that the Tribunal hearing was far too short, and that he was not asked sufficient questions, or given sufficient opportunities to present his case adequately to the Tribunal. In effect he says that the Tribunal did not explore his case properly. This is a point that would depend upon evidence of what occurred during the Tribunal hearing. Such evidence has been available to the appellant since shortly after the Tribunal hearing in 2001, by means of a tape-recording of the hearing, given to him by the Tribunal. It would have been open to the appellant at any time to have had that tape-recording transcribed, or even to have invited the Federal Magistrates Court to listen to it. He has not done so. Neither his amended application to the Federal Magistrates Court nor his notice of appeal to this Court gave any indication that he proposed to argue that the hearing he had received was inadequate. In the circumstances it would be wrong for this Court to grant him leave to put that argument on appeal. In any event, the argument is unsupported and could not succeed in the present circumstances.

12 For these reasons, unfortunately for the appellant, it is not possible for me to allow his appeal. As I have said, it is no part of the function of the courts to be determining whether the Tribunal reached the correct conclusions on matters of fact. The facts are essentially for the Tribunal. It is only if the Tribunal made a fundamental error of law or procedure, of such a nature as to lead to the conclusion that it failed to exercise its statutory function, the kind of error that is known as a jurisdictional error, that the Court can intervene. The appeal must be dismissed.

13 Counsel for the Minister has asked for an order for costs. The usual order is that costs follow the event, ie that the losing party should pay the costs of the successful party. The appellant has given me to understand that he is impecunious, but impecuniosity is not ordinarily a ground for refusing to make an order for costs. An order for costs in favour of the first respondent should therefore be made. The orders I make are as follows:

1. The appeal be dismissed.

2. The appellant pay the first respondent’s costs of the appeal.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray.

Counsel for the appellant:	The appellant appeared in person

Counsel for the respondent:	G Costello

Solicitor for the respondent:	Phillips Fox

Date of Hearing:	28 April 2006

Date of Judgment:	28 April 2006

Federal Court of Australia

Applicant M20/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 539 (28 April 2006)