WABE v Minister for Immigration & Multicultural Affairs [2002] FCAFC 168 (31 May 2002)

Last Updated: 11 June 2002

FEDERAL COURT OF AUSTRALIA

WABE v Minister for Immigration & Multicultural Affairs [2002] FCAFC 168

WABE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W 501 of 2001

WHITLAM, NORTH & STONE JJ

31 MAY 2002

PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 501 OF 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	WABE APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	WHITLAM, NORTH & STONE JJ
DATE OF ORDER:	31 MAY 2002
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent's costs.

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 501 OF 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	WABE APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	WHITLAM, NORTH & STONE JJ
DATE:	31 MAY 2002
PLACE:	PERTH

REASONS FOR JUDGMENT

THE COURT:

1 This is an appeal from a judgment made on 18 September 2001 by a judge of this Court dismissing an application to review a decision of the Refugee Review Tribunal ("the Tribunal"). The Tribunal had affirmed a decision by a delegate of the respondent, the Minister for Immigration and Multicultural Affairs ("the Minister") not to grant the appellant a protection visa. The appellant lodged a notice of appeal seeking a review of the primary judge's decision on 25 October 2001.

2 The appellant is a citizen of Iran who arrived in Australia from Japan, via Indonesia, by boat in late 2000 without a visa or a passport. The appellant had resided in Japan since 1992 and his de facto wife, a Japanese citizen, and his child, born in Japan in 1999, remain in Japan. The Tribunal's reasons for rejecting his application can be summarised by saying that the Tribunal did not believe aspects of his claims that were crucial to his claim for a protection visa.

3 The application to this Court for review of the Tribunal's decision did not specify any grounds of review under the Migration Act 1958 (Cth) ("the Act"). On the day of the hearing before the primary judge the appellant provided to the Court a one-page document that was reproduced in a schedule to his Honour's judgment. The primary judge found that this document also failed to identify a possible ground of review. Six of the nine matters raised by the appellant dealt with findings of fact by the Tribunal with which the Court has no jurisdiction to interfere. Two of the nine matters referred to events prior to the appellant's departure from Iran that the primary judge held, contrary to the appellant's submission, had been dealt with by the Tribunal. The ninth matter related to "an insinuation against the Tribunal member, but one falling short of an allegation of actual bias or of non-exercise of ... jurisdiction under the [Act]." Ultimately his Honour rejected the appellant's claim for a review of the Tribunal's decision on the basis that the appellant was challenging the Tribunal's assessment of the merits of his claim. His Honour stated that the Court "cannot change a decision of the Tribunal even if it thinks the Tribunal was wrong on the facts" and concluded that, after reviewing the Tribunal's decision himself, he was unable to see any available grounds for interfering with it.

4 A notice of motion was filed by the respondent on 14 May 2002, seeking dismissal of the appeal with costs on the basis that the appellant's notice of appeal was not filed within 21 days, as required by O 52 r 15(1) of the Federal Court Rules. At the hearing, counsel for the Minister, Mr Tsaknis, advised that the Minister would not press this notice of motion. It is therefore not necessary for us to refer to the notice any further.

5 Two grounds of appeal were raised in the appellant's notice of appeal. The first provided that "[t]here was no evidence or other material to justify the making of the decision and the [appellant] did not have a well-founded fears [sic] of persecution". The second was that the "decision included an error of law being an error of law involving the incorrect interpretation [of] the applicable law [or] an incorrect application of the law to the facts as found by the Tribunal or both." No particulars were provided in support of these grounds.

6 The appellant was unrepresented on the appeal and was unable to point to any error made by the primary judge. A close and careful reading of the Tribunal's decision and that of the primary judge does not disclose any error of law made by his Honour. The appeal must therefore be dismissed with costs.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated: 11 June 2002

Counsel for the Appellant:	The appellant appeared in person
Counsel for the Respondent:	Mr L A Tsaknis
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	31 May 2002
Date of Judgment:	31 May 2002