NABF v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 179

FEDERAL COURT OF AUSTRALIA

NABF v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 179 NABF v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 154 of 2003 BLACK CJ, HEEREY AND FINN JJ SYDNEY 13 AUGUST 2003

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N154 OF 2003

BETWEEN: NABF

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGNEOUS AFFAIRS

RESPONDENT

JUDGES: BLACK CJ, HEEREY AND FINN JJ

DATE OF ORDER: 13 AUGUST 2003

WHERE MADE: SYDNEY

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

NEW SOUTH WALES DISTRICT REGISTRY N154 OF 2003

BETWEEN: NABF

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGNEOUS AFFAIRS

RESPONDENT

JUDGES: BLACK CJ, HEEREY AND FINN JJ

DATE: 13 AUGUST 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT

THE COURT: 1 This is an appeal from a decision of Hill 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 to grant protection visas to the appellant and his wife. 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 NABF v Minister for Immigration and Multicultural Affairs [2003] FCA 131. (Those reasons may be found on the Federal Court's website: www.fedcourt.gov.au.) 2 The notice of appeal lists three grounds of appeal: "1. Procedures that were required by the act to be observed in connection with the making of the Decision were not observed. 2. According to the Migration Act there was no evidence or other material to justify the making of the decision. In the decision of my case the tribunal has not followed it. RRT was prejudice and biased. 3. The decision was not authorised by this Act or the regulations." 3 The appellant filed very detailed and clearly written submissions which refer to the factual findings made by the Tribunal. They do not, however, serve to explain the claims in the notice of appeal that the correct procedures were not observed, and that the Tribunal was biased against the appellant. 4 The question of bias does not appear to have been raised before the primary judge. It is not mentioned in the application for review or supporting affidavit filed by the appellant. In any case, there is no material before the Court to suggest that the Tribunal did not approach the task with an open mind and the matter is not pursued in the appellant's written submissions. 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 Migration Act 1958 (Cth) provides that an applicant may apply for judicial review on limited grounds of a legal nature, not factual error. We have read the reasons of the learned primary judge. His Honour carefully considered the arguments that were said to give rise to questions of law. His Honour 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. As the learned primary judge said (at [7]): "It is apparent that the applicant believes that the Tribunal should have reached a different decision on the facts as the applicant saw them. However, this court does not have jurisdiction to review the facts. Rather this court is bound by the factual findings of the Tribunal except in certain rare cases of which this is not one." We agree. 6 The appeal must be dismissed with costs. The appellant must pay the respondent's costs of the appeal. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Black, their Honours Justice Heerey and Justice Finn.