A v Minister for Immigration & Multicultural Affairs [1999] FCA 630

FEDERAL COURT OF AUSTRALIA

A v Minister for Immigration & Multicultural Affairs [1999] FCA 630 A v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 17 OF 1999 SPENDER, MOORE and EMMETT JJ 10 MAY 1999 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 17 OF 1999

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

BETWEEN: A

Appellant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGES: SPENDER, MOORE & EMMETT JJ

DATE OF ORDER: 10 MAY 1999

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: The appeal be dismissed with costs. 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 N 17 OF 1999

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

BETWEEN: A

Appellant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGES: SPENDER, MOORE & EMMETT JJ

DATE: 10 MAY 1999

PLACE: SYDNEY

REASONS FOR JUDGMENT SPENDER J: 1 This is an appeal from an order of a single judge of this Court, Katz J, who on 31 December 1998 dismissed an application by the appellant, A, for review of a decision of the Refugee Review Tribunal made on 14 September 1998, affirming an earlier decision of a delegate of the Minister made on 23 April 1998 to refuse to grant to A a protection visa. 2 There were only two grounds argued before the learned primary judge, but A does not seek to rely on either of these grounds in this appeal. Further, two grounds that appear in the written notice of appeal seem to have been formulated by A by copying part of a notice of appeal filed by another person in different circumstances. However, A has indicated to this Court that he does not rely on the grounds in the notice of appeal. Instead, he says that the Refugee Review Tribunal was wrong in rejecting his claim that he had a well-founded fear of persecution should he be returned to Libya. He says that there is material now available to him, obtained subsequent to the Tribunal's decision, which would assist in his challenge to the correctness of the Tribunal's conclusion as to whether he had a well-founded fear. 3 The Court understands the concern A expresses in relation to his return to Libya. It is apparent that his claim for asylum has received some support from the National Front for the Salvation of Libya, an organisation which opposes the current Libyan regime. A claimed before the Tribunal that relatives of his had held prominent positions with that organisation. It is pertinent to note that the Tribunal recognised something of the sensitivities associated with the support of the National Front for the Salvation of Libya. The Tribunal said: "There is no evidence that the Libyan authorities would know that the organisation has provided a letter of support for the applicant and while I accept that there is considerable sensitivity about the organisation within the Libyan government, there is no evidence that the Libyan authorities would follow up individuals named in the organisation's letters of support." 4 It seems to me, however, that the basis of A's challenge to the decision of the Tribunal does not involve a claim of any error by the primary judge. It is directed at challenging the conclusion of the Tribunal and seeks to assert what may be fresh evidence in the generally understood sense, as providing a reason for disturbing the Tribunal's conclusion. 5 The particular matters which A has mentioned do not seem to me to fall within any ground in the Migration Act 1958 (Cth) which can properly found a successful application for review. In particular, it does not seem to advance a ground that falls within s 476(1)(g). 6 It is important that it be understood, particularly by the appellant, that this Court's function is concerned with the detection and correction of legal error, if there be any, in the judgment at first instance in the Federal Court. This Court is not able to entertain a challenge to the decision of the Tribunal on any ground that could not have been argued before the Federal Court at first instance. The grounds which A wishes to put before us are not such grounds, and I cannot therefore see any course open to this Court other than to dismiss the appeal. 7 I should note, however, that if there is fresh material or further material which impacts on the correctness of the factual decision of the Tribunal as to a well-founded fear of persecution, there may be two avenues open to A to have the question of a protection visa re-agitated. The first of these flows from s 417 of the Migration Act, and the second from s 48B of the Act. I do not wish to give A any false hopes that either of those avenues will be of assistance in his case, but those avenues are brought to his attention because they may provide a method of revisiting the question before the Tribunal, with the assistance of further material. 8 For the reasons I have given, in my opinion no basis has been shown for doubting the correctness of the judgment of Katz J. The appeal should be dismissed.