VDAB of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 375 (25 November 2002)

Last Updated: 2 December 2002

FEDERAL COURT OF AUSTRALIA

VDAB of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 375

MIGRATION - appeal from a decision of a single judge of the Court - where notice of appeal reprises grounds of application - where additional oral arguments put to the Court invite the Court to form a different conclusion on the facts to that arrived at by the Tribunal - no error of law - appeal dismissed.

Migration Act 1958 (Cth), s 476

APPLICANT VDAB OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

V262 of 2002

BLACK CJ, NORTH & MERKEL JJ

MELBOURNE

25 NOVEMBER 2002

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V262 OF 2002

On appeal from a single judge of the Federal Court of Australia

BETWEEN:	VDAB of 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	BLACK CJ, NORTH & MERKEL JJ
DATE OF ORDER:	25 NOVEMBER 2002
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent's costs in 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	V262 OF 2002

On appeal from a single judge of the Federal Court of Australia

BETWEEN:	VDAB of 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	BLACK CJ, NORTH & MERKEL JJ
DATE:	25 NOVEMBER 2002
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1 This is an appeal from a judgment of a single judge of this Court, dismissing an application for judicial review of a decision by the Refugee Review Tribunal (the "Tribunal") that affirmed the refusal of the appellant's application for a protection visa.

2 The appellant's case has received very comprehensive examination, first by the Tribunal and then by the primary judge: see Rerukana v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 472. The appellant filed a written submission, which set out the grounds on which he said his Honour had erred in coming to his conclusion. We have carefully looked at that document. The document repeats the arguments that were put to the primary judge. His Honour dealt at length with each of the five arguments that are now complained about in that document. We agree with what he said in his judgment about each of those arguments. There is no legal error in the way in which his Honour dealt with each of the arguments referred to in the appellant's written document.

3 Today before the Court, the appellant addressed several additional arguments. He first referred to a fax from the Chalmers Business College addressed to Mr Suran Abeyagoonasekera. He suggested that this document indicated his connection with Mr Abeyagoonasekera and with his family and that this was an essential part of his case.

4 The Tribunal in fact dealt with the alleged connection with Mr Abeyagoonasekera and his family. In its reasons, the Tribunal said (at 31):

"The applicant was a man in his very early twenties with only a limited and a low level political involvement with the Abeyagoonasekeras and it is difficult to see that he would have been able to maintain the attention of Mr Athulathmudali, Mr Dissanayake and Mr Ossie Abeygoonasekera [sic] so often and as easily as he has claimed although I note that he has claimed that he was family friends with one."

5 It seems that the appellant took the Court to the facts to seek to demonstrate that the Tribunal had erred in coming to the conclusion to which we have just referred. Put that way, the appellant's argument is that the Tribunal came to a wrong conclusion on the facts. If that be so, and it is not by any means clear that it is, it would not be a ground upon which the Court could interfere with the decision of the Tribunal. It is for the Tribunal to determine questions of fact and it is only on reviewable errors, such as errors of law, that the Court might intervene.

6 The next matter addressed by the appellant orally concerned a letter from the Nawaloka Construction Company Ltd dated 28 November 1994. That letter stated that the appellant was an employee of the firm from 15 August 1989 to 11 December 1991. As we gather his submission to the Court, the appellant believed that the Tribunal or, as he put it, the Minister, had suggested that this letter was fabricated. When one goes to the reasons of the Tribunal there is no such suggestion. Consequently, there is nothing in the appellant's submission concerning the letter that founds any ground of appeal.

7 Finally, the appellant made reference to a copy of his passport that showed that he had travelled to India on 3 October 1991. It was his case before the Tribunal that he went to India and was carrying important documents as part of the transaction that he claims lies at the basis of his fear of persecution. The appellant submitted to the Court that the Tribunal was bound to explain on the basis of the evidence of his passport the reason why the appellant went to India. The matter was addressed by the Tribunal. At page 32 of its reasons the Tribunal said:

"The applicant said that his involvement in taking some documents to India was not known but it is hard to see that this would have any impact today given that India has for a decade been well aware that arms were provided to the LTTE by the government and of the implications this had for its peace-keeping forces, that Mr Wathiyage's role in giving documents to Mr Alagappan, apparently an official of some kind, has been known and when the applicant had and has no idea what he handed over."

The Tribunal went on to reject the proposition that the appellant knew anything significant about what had occurred that had not been well publicised, and was not generally known. It can therefore be seen that the Tribunal addressed the very issue. It is clear, however, that the Tribunal came to a conclusion about that issue which was different to the conclusion that the appellant now says it should have arrived at. Again, that does not found any proper ground of review of the decision of the Tribunal. It amounts to asking the Court to form a different conclusion on the facts than that arrived at by the Tribunal.

8 Consequently, in our view, no reviewable error has been shown to have been committed either by his Honour or by the Tribunal and in our view the appeal must be dismissed with costs.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Court.

Associate:

Dated: 29 November 2002

Counsel for the Appellant:	The appellant appeared in person
Counsel for the Respondent:	Mr W. Mosley
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	25 November 2002
Date of Judgment:	25 November 2002