Applicant VCAT of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 141

FEDERAL COURT OF AUSTRALIA

Applicant VCAT of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 141

MIGRATION – visa – protection visa – Sikh citizen of India claiming persecution by Sikh separatist movement and police – whether denial of natural justice – country information – whether appellant entitled to know source of country information considered by Tribunal – whether Tribunal raised expectation that it would put country information to appellant – whether Tribunal indicated to appellant that information adverse to appellant – whether Tribunal informed appellant of importance of country information. MIGRATION – whether Tribunal obliged to provide particulars, and an explanation of relevance, of information on which it relied to make finding against appellant – whether information given by appellant for purposes of application – discretion to refuse relief – whether appellant disadvantaged in relation to information. BIAS – apprehended bias – conduct of hearing – whether Tribunal stopped appellant telling his story – whether Tribunal failed to ask open questions – relevant of presence of legal representative. PRACTICE AND PROCEDURE – appeals – conduct by appellant – abandonment of grounds – raising grounds not raised before primary judge and not in notice of appeal – not pursuing arguments in written submissions – not providing transcript of Tribunal hearing in support of apprehended bias claim – possible consequences for solicitors.

Judiciary Act 1903 (Cth) s 39B Migration Act 1958 (Cth) ss 424A, 441A, 474 Federal Court Practice Note 1

Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27; [2001] FCA 919, referred to Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22, distinguished NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 193 ALR 449; [2002] FCAFC 228, referred to R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389, applied Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57, cited Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28, applied Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71, referred to