Kone v Minister for Immigration & Multicultural Affairs [2002] FCAFC 66 Kone v Minister for Immigration & Multicultural Affairs [2002] FCA 294 NOTE: CHANGES TO THE MEDIUM NEUTRAL CITATION (MNC) The Federal Court adopted a new medium neutral citation (FCAFC) for Full Court judgments effective from 1 January 2002. Single Judge judgments will not be affected and will retain the FCA medium neutral citation. The transitional arrangements are as follows: * All Full Court judgments delivered prior to 1 January 2002 will retain the FCA medium neutral citation. * All Full Court judgments delivered between 1 January 2002 to 30 April 2002 have been assigned parallel medium neutral citations in both the FCA and FCAFC series. * All Full Court judgments delivered from 1 May 2002 will contain the FCAFC medium neutral citation only. FEDERAL COURT OF AUSTRALIA Kone v Minister for Immigration & Multicultural Affairs [2002] FCA 294 MIGRATION - appeal - no error in primary judge's reasons Migration Act 1958 (Cth) ss 48B, 417, 420, 424A, 476 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. CHEIKH VABOU KONE V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS W449 OF 2001 BLACK CJ, WILCOX & MOORE JJ 6 MARCH 2002 PERTH IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY W449 OF 2001 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: CHEIKH VABOU KONE APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: BLACK CJ, WILCOX & MOORE JJ DATE OF ORDER: 6 MARCH 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 NEW SOUTH WALES DISTRICT REGISTRY W449 OF 2001 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: CHEIKH VABOU KONE APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: BLACK CJ, WILCOX & MOORE JJ DATE: 6 MARCH 2002 PLACE: PERTH REASONS FOR JUDGMENT BLACK CJ: 1 This is an appeal from a decision of French J given on 4 September 2001. His Honour dismissed an application for a review of a decision of the Refugee Review Tribunal ("the Tribunal") given on 22 May 2001. The Tribunal agreed with a decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister") not to grant Mr Kone a protection visa under the Migration Act 1958 ("the Act"). 2 The background to this case is described in the decision of French J from which this appeal is brought and it is not necessary for us to set that out again. It is sufficient to note that in his application for a protection visa Mr Kone, a citizen of the Ivory Coast, made several claims. He claimed that he feared persecution if returned to the Ivory Coast by reason of his Islamic religion, his membership of the Dioula ethnic group and political activities with the Rassemblement des Republicains ("RDR"). The appellant claimed that his political activism involved not only membership of the RDR, but also work as a journalist for Le Patriot, and later Le Republicain, which he said were newspapers published by the RDR. He claimed to have been arrested and detained as a result of an article he wrote about the leader of the RDR, Alassane Ouattara. 3 The Tribunal affirmed the decision of the delegate not to grant a visa and Mr Kone sought an order for judicial review from a single judge of this Court who dismissed the application on the basis that Mr Kone's application was really no more than an attempt to have the Court substitute a different view of the facts to that taken by the Tribunal. 4 It is now necessary for me to explain a little about what that means in Australian law. In Australian refugee law the first decision is made by a public official, a delegate of the Minister and then a person who is dissatisfied with that decision has a right to ask for a review of it by the Refugee Review Tribunal. But the important feature of the law is that the Refugee Review Tribunal is the Tribunal that makes all the decisions about the facts of the case. 5 The role of the Court in such a case is quite different. It is a little like, in countries whose law reflects the French legal system, the role of a Court de Cassation. So, the role of our Court is to determine not the facts of the case but, something like a Court de Cassation, whether there is a legal error in the reasons or processes of the Tribunal. The grounds upon which the Court can determine whether or not there is a legal error are very limited by reason of the Act of the Australian Parliament, which makes laws about such matters. Accordingly when French J said that this was really an attempt to go into the facts of the case again, what he was saying was that legal grounds for challenge had not been made out. 6 In written submissions prepared, we were told, by a friend of Mr Kone and submitted to the Court, three grounds of appeal are advanced. The first ground is that the Tribunal did not act in accordance with the substantial justice of the case and that this was contrary to section 420 of the Act. As counsel for the Minister has pointed out, however, that ground is not available because, in substance, the High Court has said that that is not a legal ground of appeal in these cases: see Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. 7 The second ground is that the Tribunal acted contrary to section 424A of the Act because it failed to refer to Mr Kone information on which it based its decision. However, as counsel for the Minister has also pointed out, the problem with that argument is that the Tribunal simply did not accept what Mr Kone had said, and that situation is not governed by section 424A of the Act. 8 The third ground of appeal concerns what Mr Kone says is his appearance on the television program A Current Affair in February of this year. Mr Kone argues that this founds a sur place claim. But that ground is not available because it is based on events that occurred after the decision of the primary judge from which this appeal is brought. As counsel for the Minister submitted, Mr Kone may wish to request the Minister to allow him to make a fresh application pursuant to sections 48B and 417 of the Act on the basis of this allegation, but that is a matter within the discretion of the Minister and is not a matter with which the Court is able to deal in this appeal. 9 The other grounds of Mr Kone's appeal were developed by him in an oral submission made to the Court. Those grounds were, however, of the same nature as the grounds French J was unable to accept when he heard the case last year. They are in effect arguments about the facts not the law. Accordingly, the appeal from French J's decision has not been made out and should be dismissed with costs. I certify that the preceding nine (9) numbered paragraphs are a true copy of the reasons for judgment herein of the Honourable Chief Justice Black. Associate: Dated: 22 March 2002 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY W449 OF 2001 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: CHEIKH VABOU KONE APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: BLACK CJ, WILCOX & MOORE JJ DATE: 6 MARCH 2002 PLACE: PERTH REASONS FOR JUDGMENT WILCOX J: 10 I agree with the reasons given by the Chief Justice. I certify that the preceding one (1) numbered paragraph is a true copy of the reasons for judgment herein of the Honourable Justice Wilcox. Associate: Dated: 22 March 2002 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY W449 OF 2001 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: CHEIKH VABOU KONE APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: BLACK CJ, WILCOX & MOORE JJ DATE: 6 MARCH 2002 PLACE: PERTH REASONS FOR JUDGMENT MOORE J: 11 I also agree with the reasons given by the Chief Justice. I certify that the preceding one (1) numbered paragraph is a true copy of the reasons for judgment herein of the Honourable Justice Moore. Associate: Dated: 22 March 2002 Counsel for the Appellant: The appellant appeared in person Counsel for the Respondent: Mr AA Jenshel Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 6 March 2002 Date of Judgment: 6 March 2002