NAEV v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 172 (12 August 2003)

Last Updated: 12 August 2003

FEDERAL COURT OF AUSTRALIA

NAEV v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCAFC 172

NAEV v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 314 of 2003

BLACK CJ, HEEREY AND FINN JJ

SYDNEY

12 AUGUST 200

3IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 314 OF 2003

BETWEEN:	NAEV APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	BLACK CJ, HEEREY AND FINN JJ
DATE OF ORDER:	12 AUGUST 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be 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
NEW SOUTH WALES DISTRICT REGISTRY	N 314 OF 2003

BETWEEN:	NAEV APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	BLACK CJ, HEEREY AND FINN JJ
DATE:	12 AUGUST 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:

1 This is an appeal from a decision of Branson J, rejecting the appellant's application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") affirming a decision of a delegate of the respondent Minister to refuse him a protection visa. The relevant facts and the grounds on which the appellant sought review of the Tribunal's decision are set out in the reasons of the trial judge: see NAEV v Minister for Immigration and Multicultural Affairs [2003] FCA 160. (Those reasons can be found on the Federal Court's website: www.fedcourt.gov.au.) The appellant claims to fear persecution in Bangladesh due to his political and religious opinions.

2 The notice of appeal contains five grounds. They are that the learned judge erred in failing to consider "the strong possibility of [the appellant's] persecution upon return to Bangladesh" due to his political affiliation with the Jatiya Party and his conversion to Christianity; that the primary judge "did not consider a number of particularised errors" in the decision of the Tribunal; that the decision of the Tribunal was not "based on documents"; that "the Tribunal did not made the decision on the basis of documentation submitted by the review applicant"; and that the primary judge did not consider the "prevailing situation in Bangladesh".

3 The appellant filed written submissions in which he said that it had been explained to him that he could "only apply to the Federal Court about errors of law not errors of fact", but he asserts that both the Tribunal and the primary judge did make errors of law. The submissions do not develop the points raised in the ground of appeal except, possibly, in relation to the first ground. In relation to that ground, the appellant appears to refer to [17] of her Honour's reasons, and asserts that her Honour has wrongly characterised matters as being factual in nature and as not raising questions of law. It is sufficient to say that the appellant's submission is misconceived and, more particularly, that the Tribunal did consider the effect upon him of his membership of the Baptist Church in Bangladesh.

4 In the next point raised in the written submissions the appellant challenges the findings of the Tribunal for inconsistency. There does not, however, appear to be any inconsistency and even if there were, the complaint is one that relates essentially to the Tribunal's factual findings.

5 The remainder of the appellant's written submissions seek to characterise what are in truth matters going to the facts as questions of jurisdictional error. We can see no such error and the primary judge was correct in concluding that the appellant was really seeking merits review notwithstanding that he sought to use legal terminology apt to describe judicial review.

6 As has been pointed out many times, it is the Tribunal that has the function of determining the merits of an application for a protection visa, not the Court. Section 476 of Migration Act 1958 (Cth) provides that an applicant may apply for judicial review on limited grounds and these do not encompass the factual matters the appellant complains about.

7 The appeal must be dismissed with costs.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Black, their Honours Justice Heerey and Justice Finn.

Associate:

Dated: 12 August 2003

Counsel for the Appellant:	The appellant appeared in person
Counsel for the Respondent:	Mr T Reilly
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	12 August 2003
Date of Judgment:	12 August 2003