WAHW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 140

FEDERAL COURT OF AUSTRALIA

WAHW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 140 WAHW v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS W 184 of 2003 WILCOX, MARSHALL and JACOBSON JJ 18 MAY 2004 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W 184 of 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: WAHW

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT JUDGES: WILCOX, MARSHALL and JACOBSON JJ

DATE OF ORDER: 18 MAY 2004

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the costs of the respondent. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W 184 of 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: WAHW

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: WILCOX, MARSHALL and JACOBSON JJ

DATE: 18 MAY 2004

PLACE: PERTH

REASONS FOR JUDGMENT WILCOX J: 1 This is an appeal against a decision of Bryant CFM ('the Magistrate') dismissing an application to set aside a decision made by the Refugee Review Tribunal ('the Tribunal'). It is unnecessary for me to set out the history of the matter or to refer to the findings of the Tribunal or the decision of the Magistrate. 2 A number of grounds were argued before the Magistrate in support of the proposition that the Tribunal had fallen into jurisdictional error. Those grounds were considered but dismissed. All of those grounds were abandoned by the appellant's counsel at the commencement of the oral hearing today. 3 We were told by counsel that the only ground that his client wished to press was that the Tribunal fell into jurisdictional error because it wrongly identified the particular social group to which the appellant belonged. Counsel said the Tribunal should have held that the appellant was a member of a particular social group that could properly be described as 'young Tamils from north or east [in Sri Lanka], but particularly those from the Jaffna peninsula or LTTE controlled mainland areas known as the Vanni region'. 4 In response to questions from the Bench, counsel agreed that no claim of membership of such a group had been advanced by the appellant at any earlier stage of his application for a protection visa. It was not advanced in his initial application, despite the fact that he then had legal advice, nor was it advanced before or during the Tribunal hearing. No submission was put to the Magistrate that the Tribunal erred in failing to find that the appellant was a member of such a group. 5 A claim was made to the Tribunal that the appellant was a member of a different particular social group, being the people in his immediate family. For reasons which it gave, the Tribunal rejected this basis of a claim of well‑founded fear of persecution. The reasons basically depended on the Tribunal's inability to accept the truthfulness of much of the appellant's evidence. As stated above, there was no claim made for membership of a wider social group. Consequently, the Tribunal did not address that question or make any factual findings relevant to it. 6 It seems to me it is not open to the appellant, at this stage, to rely on a ground of appeal that depends upon the Magistrate's failure to set aside the Tribunal's decision because of its failure to consider a claim that was not put to it or mentioned to the Magistrate. Counsel's submission, in effect, invites the Full Court to say the Tribunal erred in failing to devise for the appellant, and then to consider, a claim which he did not himself make. Such a submission is untenable. In my view, the appeal should be dismissed with costs. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.