R v Minister for Immigration & Multicultural Affairs [2001] FCA 489

FEDERAL COURT OF AUSTRALIA

"R" v Minister for Immigration & Multicultural Affairs [2001] FCA 489

MIGRATION – protection visa – review of decision of Refugee Review Tribunal – whether adverse matters put to applicant – whether no evidence Migration Act 1958 (Cth) Pt 8 De Silva v Minister for Immigration and Multicultural Affairs [2000] FCA 765 at pars 8 to 9 and 10 followed Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 at 50 followed Tho Xuan Doan v Minister for Immigration Local Government & Ethnic Affairs & Boland [1997] FCA 222 followed Zhang Su Rong v Refugee Review Tribunal & Anor [1997] FCA 423 followed Fernando v Minister for Immigration and Multicultural Affairs [1997] FCA 1217 followed "R" v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS V 424 OF 1999 HEEREY J 18 APRIL 2001 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 424 OF 1999

BETWEEN: "R"

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: HEEREY J

DATE OF ORDER: 18 APRIL 2001

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant pay the respondent's costs, including reserved costs.

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 424 OF 1999

BETWEEN: "R"

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: HEEREY J

DATE: 18 APRIL 2001

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 The applicant seeks review under Pt 8 of the Migration Act 1958 (Cth) of a decision of the Refugee Review Tribunal given on 9 July 1999 affirming the decision of a delegate of the Minister not to grant the applicant a protection visa. I incorporate by reference the reasons of the Tribunal. 2 At a stage when the applicant had the assistance of pro bono counsel, contentions of fact and law were filed on his behalf. The applicant was not represented at the hearing before me. He read, with the assistance of an interpreter, those contentions but did not wish to add anything to them. In the contentions it is said, first, that the Tribunal failed to put to the applicant matters about which it disbelieved him and which were critical to its ultimate findings in relation to whether he had a "real chance" of persecution for a Convention reason. Secondly, there was no evidence or other material upon which the Tribunal could reasonably be satisfied that the applicant did not face a real chance of persecution in the foreseeable future, within the meaning of s 476(1)(g) and 476(4)(a). 3 Turning to the first ground, the matters which it is said that the Tribunal wrongly failed to put to the applicant were the findings that (i) the discrepancies between the applicant's protection visa application form and his claims to the delegate and the Tribunal were deliberate omissions, and that his explanation was not credible and (ii) that the applicant did not meet Andrei Sakharov in Nizhniy Novgorod. On the basis of the latter finding, the Tribunal did not believe that the applicant had been detained and tortured as he alleged. 4 There may be ground for thinking that at least some of these matters were put to the applicant either by the delegate or in the hearing before the Tribunal. But even if that not be so, I think it is clear that at best this complaint amounts to an assertion that the Tribunal breached the rules of natural justice. This is not a ground for review under Pt 8: see s 476(2)(a). 5 Although it was not raised in the contentions, I should add, as counsel for the Minister pointed out, that s 425 would not be available. That section does not have continuing operation during the hearing obliging the Tribunal to identify issues and draw them to the applicant's attention: see De Silva v Minister for Immigration and Multicultural Affairs [2000] FCA 765 at pars 8 to 9 and 10, Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 at 50. 6 Turning to the second point, the "no evidence" ground is severely limited in its application to Pt 8 review by the terms of s 476(4)(a). As has been pointed out in a number of cases, and is so in the present case, it is not possible to identify any particular matter that is required by law to be established in order to justify a decision that an applicant is not a refugee: Tho Xuan Doan v Minister for Immigration, Local Government & Ethnic Affairs & Boland [1997] FCA 222 – followed in Zhang Su Rong v Refugee Review Tribunal & Anor [1997] FCA 423 and Fernando v Minister for Immigration and Multicultural Affairs [1997] FCA 1217. 7 In summary, this was a case where the Tribunal did not accept substantial features of the applicant's claimed history. These were questions of fact which was entirely a matter for the Tribunal. No grounds for review have been established. The application will be dismissed with costs.