Applicant VAAN of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 73

FEDERAL COURT OF AUSTRALIA

Applicant VAAN of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 73

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

Migration Act ss 474, 476

APPLICANT VAAN OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS V 550 OF 2002 BLACK CJ, WEINBERG AND SELWAY JJ 20 FEBRUARY 2003 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 550 OF 2002

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

BETWEEN: APPLICANT VAAN OF 2002

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

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 550 OF 2002

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

BETWEEN: APPLICANT VAAN OF 2002

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: BLACK CJ, WEINBERG AND SELWAY JJ

DATE: 20 FEBRUARY 2003

PLACE: MELBOURNE

REASONS FOR JUDGMENT THE COURT: 1 The appellant has appealed against a decision of a judge of the Court dismissing an application for judicial review of the decision of the Refugee Review Tribunal ("the RRT"): VAAN v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 978. The RRT affirmed a decision of the respondent ("the Minister") not to grant a Protection (Class XA) visa to the appellant and his daughter. 2 The appellant is a citizen of Sri Lanka and is of Sinhalese ethnicity. He arrived in Australia with his nine-year-old daughter in November 2001 on a Subclass 420 entertainment visa: apparently the appellant later admitted that his claim that he was a member of a dancing troupe was not true and he subsequently lodged an application for a Protection (Class XA) visa claiming that he feared persecution because of his family's active support of the Sri Lankan Freedom Party ("SLFP"). He claimed that because of his political activities and those of his family members they had been targeted by the United People's Party and that he feared physical harm or even death because of his political involvement with the SLFP. 3 The RRT accepted that the appellant and members of his family were long-time supporters of the SFLP and that he had organised and taken part in its political activities. The RRT concluded, however, that the appellant did not have a well-founded fear of persecution for any Convention reason. It found that references and other documents on which he relied in support of his claim were not genuine. In essence, it did not accept what the appellant told it about particular aspects of his claim. 4 The appellant sought judicial review of the decision of the RRT. In his application for judicial review the appellant did not particularise any grounds, but in an oral submission to the primary judge he said that the Tribunal had wrongly refused to defer the hearing to enable him to obtain documents from Sri Lanka. The primary judge comprehensively considered the reasons and conclusions of the RRT, including the circumstances surrounding the hearing of the appellant's application. The judge concluded that the appellant had not been denied procedural fairness because of the RRT's refusal to postpone the hearing to enable the location of the documents from Sri Lanka (at [7]). His Honour further found that the RRT was entitled to conclude that the documents produced by the appellant to the Tribunal were not genuine and that the appellant was not credit worthy (at [6]). 5 The primary judge observed that the decision of the RRT was a "privative clause decision" within s 474 of the Act (at [5]) and that consequently the decision of the Tribunal was not reviewable. His Honour nevertheless concluded that even if the common law grounds of review considered in Craig v South Australia (1995) 184 CLR 163 at 179 ("Craig") and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82] ("Yusuf") were available, they would not assist the appellant. His Honour concluded (at [6]) that: "[a] careful reading of the Tribunal's decision discloses no error of law. It did not identify a wrong issue, ask the wrong question, ignore relevant material or rely on irrelevant material. It had before it evidence that supported its findings." 6 The Notice of Appeal from the decision of the primary judge refers to grounds "under section 476" of the Act and says that further particulars and an amended application will be forwarded. No further particulars or amended application have been filed and, although directed to do so, the appellant has not filed any outline of his submissions. 7 The appellant appeared before the Court today in person and made some oral submissions. He argued, first, that he had been denied a fair hearing before the RRT. He says that the RRT should have adjourned the hearing to enable him to obtain certain documents from Sri Lanka. That matter was, however, dealt with in some detail by the primary judge and his Honour was satisfied that no injustice had been done. His Honour noted, for example, that one of the documents was essentially unreadable and that this had been conceded by the appellant (at [8]). The appellant also submitted that a police report was not translated for the RRT but the primary judge observed that the document was translated orally and that the Tribunal was therefore able to consider it (at [9]). 8 The appellant submitted, secondly, that the Tribunal acted unfairly in another respect. It had not allowed him, he said, to make comprehensive submissions and he had been distressed at the time of the hearing before the RRT as a result of the time he had spent in detention. He said that the Tribunal seemed already to have made up its mind. These matters were not raised before the trial judge and new matters of this nature cannot, in exceptional circumstances (and there are no such circumstances here), be raised for the first time before the Court on appeal: WT Partnership (Aust) Pty Ltd and WTP (Hong Kong) Ltd v Sheldrick [1999] FCA 843 (at [11] – [19]); Heron v The Queen [2003] HCA 17. 9 The appellant further submitted that the RRT had failed to take into account matters that it should have taken into account. What the appellant submitted in this respect, however, was really another way of putting his concern about the other matters to which we had already referred. 10 Since the hearing of the application for judicial review, the High Court has delivered judgment in Plaintiff S157/2002 v Commonwealth (2003) 195 ALR 24, in which it considered the construction of s 474 of the Act. The Court concluded that s 474 did not protect a decision of the RRT which involved jurisdictional error. Such a decision, the Court held, would not constitute "a decision…made under [the] Act" and would not, therefore constitute a "privative clause decision" as defined by s 474(2) (at [77] – [78]). 11 The recent consideration of s 474 by the High Court does not, however, assist the appellant. We see no reason to disturb the primary judge's conclusion that even if the common law grounds of review considered in Craig and Yusuf were available, they would not assist the appellant. The appeal must be dismissed with costs. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the reasons for judgment herein of the Full Court.