Applicant in V 180 of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 72 (20 February 2003)

Last Updated: 15 April 2003

FEDERAL COURT OF AUSTRALIA

Applicant in V 180 of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 72

MIGRATION - appeal - no error in primary judge's reasons

Migration Act 1958 (Cth) s 476

APPLICANT IN V 180 OF 2001 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

V 590 OF 2002

BLACK CJ, WEINBERG AND SELWAY JJ

MELBOURNE

20 FEBRUARY 2003

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 590 OF 2002

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

BETWEEN:	APPLICANT IN V 180 OF 2001 APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS APPAIRS RESPONDENT
JUDGES:	BLACK CJ, WEINBERG AND SELWAY JJ
DATE OF ORDER:	20 FEBRUARY 2003
WHERE MADE:	MELBOURNE

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
VICTORIA DISTRICT REGISTRY	V 590 OF 2002

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

BETWEEN:	APPLICANT IN V 180 OF 2001 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	BLACK CJ, WEINBERG AND SELWAY JJ
DATE:	20 FEBRUARY 2003
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

THE COURT:

1 This is an appeal from a decision of Ryan 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 Applicant in V 180 of 2001 v Minister for Immigration and Multicultural Affairs [2002] FCA 1041.

2 The notice of appeal contains two grounds. They are that the learned judge erred:

"(1) In not accepting that the errors identified by the applicant in the decision of the Refugee Review Tribunal were of such a nature as to attract relief under s 39B of the Judiciary Act 1903 (Cth).

(2) By not finding that the approach adopted by the Tribunal was of such a nature as to render its decision invalid."

3 Although directed by the Court to file a written outline of the submissions he wished to make in support of his appeal, the appellant has not done so but he has appeared before the Court today. When asked to explain his case orally, he said, first, that he could not return to Sri Lanka; secondly, that he had a fear of returning to Sri Lanka; and thirdly, that he would receive no protection if he were to return to Sri Lanka.

4 In his written submission, counsel for the respondent correctly noted that the jurisdiction of the Court to review the decision of the Tribunal was grounded in Pt 8 Div 2 of the Migration Act 1958 (Cth) ("the Act") as in force at the relevant time. The application for review was filed on 13 March 2001, which was prior to the enactment of the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth).

5 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 the Act, in force at the relevant time, provides that an applicant may apply for judicial review on limited grounds of a legal nature, not factual error. The Court does not have jurisdiction to review on factual grounds.

6 We have read the reasons of the learned primary judge. He carefully considered the arguments that were said to give rise to questions of law. He concluded that they did not make out any legal error and that there was no basis for him to interfere with the decision of the Tribunal.

7 We have heard what the appellant has said to us today, but we see no reason to doubt the conclusion reached by the learned primary judge that there was no error in the decision of the Tribunal. The appeal must be dismissed with costs. The appellant must pay the respondent's costs of the appeal.

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, Justice Weinberg and Justice Selway.

Associate:

Dated: 15 April 2003

Counsel for the Applicant:	The applicant appeared in person
Counsel for the Respondent:	Mr C Fairfield
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	20 February 2003
Date of Judgment:	20 February 2003