VAM v Minister for Immigration & Multicultural Affairs [2002] FCAFC 125

FEDERAL COURT OF AUSTRALIA

"VAM" v Minister for Immigration & Multicultural Affairs [2002] FCAFC 125 "VAM" v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS V 1284 OF 2001

BLACK CJ, DRUMMOND AND KENNY JJ MELBOURNE 10 MAY 2002

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 1284 OF 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: "VAM"

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGES: BLACK CJ, DRUMMOND AND KENNY JJ

DATE OF ORDER: 10 MAY 2002

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent's costs of and incidental to 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 1284 OF 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: "VAM"

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGES: BLACK CJ, DRUMMOND AND KENNY JJ

DATE: 10 MAY 2002

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 This is an appeal from the decision of Marshall J dismissing an application by the appellant for judicial review of a decision of the Refugee Review Tribunal. The Tribunal affirmed a decision of a delegate of the Minister not to grant the appellant a protection visa. 2 The decision of the Tribunal was "a privative clause decision" within s 474 the Migration Act 1958 (Cth) as amended by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth). As is noted by the Minister in his written submissions, judges of this Court, sitting at first instance, have expressed differing views on the extent to which s 474 restricts judicial review by this Court of decisions of the Tribunal. The learned primary judge did not find it necessary to express a concluded view on the extent of this Court's jurisdiction to review decisions of the Tribunal of the kind now in question because he considered that the appellant's application so lacked merit that whatever be the precise scope of this Court's powers of review, the application could not succeed. 3 In the proceedings before the learned primary judge, the appellant was represented on a pro bono basis by senior and junior counsel. The appellant appeared for himself on the appeal. His notice of appeal is confined to seeking "review of the decision made by the Federal Court hence the review of the decision made by the RRT in regards to my 'protection visa' application". It does not identify any grounds for appealing the decision of the learned primary judge. But the appellant has had assistance in preparing his written contentions of fact and law. In essence, he contends that the learned primary judge erred in not upholding the complaints the appellant made about the Tribunal's decision. 4 The appellant in oral submissions to this Court said that the Tribunal had made some factual errors in the reasons it gave. But, this Court's jurisdiction to review the decision of the Tribunal would permit it to intervene only where errors of law are established, not errors of fact. 5 The appellant is a Malaysian national. He worked in Malaysia as a policeman from 1986 to 1992. After he left the police force he worked as a driver. In June 1997, he came to Australia on a tourist visa and stayed for one month. He then travelled to New Zealand where he lived for about a year. He returned to Malaysia in about September 1998 and stayed there until 31 December 1998, when he once again departed for Australia on a tourist visa. He subsequently obtained a student visa, which he overstayed. When he was placed in migration detention for overstaying his student visa, he made an application for a protection visa. 6 The appellant sought a protection visa, claiming he faced persecution in Malaysia because, while serving as a policeman there, he gave information to the anti-narcotic police about a gangster named "Ringo" who he said had close contacts in the Malaysian government and police force. In summarising the claims the appellant made to the Tribunal, the learned primary judge referred to the ill-treatment he said he suffered at the hands of other police after he provided this information about "Ringo" in 1989, to the unjustified disciplinary action he said was taken against him and to his dismissal from the police force in 1992. The learned primary judge also referred to his claim that he had served two years in a rehabilitation centre on trumped up drug charges and to the numerous death threats the appellant said he received and the numerous attempts made on his life while he lived in Malaysia between 1992 and mid 1997, when he came first to Australia and then to New Zealand. The learned primary judge also noted the appellant's account of his return to Malaysia in about September 1998, the attack he said was made on him and his ultimate flight to Australia in December 1998. 7 A major issue litigated at first instance was whether the Tribunal's decision was flawed with error in so far as it rejected the appellant's claim that the persecution he feared if returned to Malaysia was "for reasons of … membership of a particular social group" within Art 1A(2) of the Convention relating to the Status of Refugees of 28 July 1951, as amended by the Protocol relating to the Status of Refugees of 31 January 1967 ("the Convention"). In his written submissions, the appellant contends that the learned primary judge fell into error in rejecting the appellant's complaints about the Tribunal's conclusion on this issue. 8 In the proceedings before the learned primary judge, counsel for the appellant contended that the Tribunal erred in not holding that "a particular social group" within Art 1A(2) of the Convention could be defined by a shared occupation, coupled with engagement in a particular activity by those sharing that occupation. It was said that the Tribunal erred in concentrating on whether ex-policemen or disgraced former policemen constituted a particular social group without taking into account that each of those persons had also engaged in the particular activity of providing information to the authorities about the gangster "Ringo". The learned primary judge rejected this argument. His Honour said: