FEDERAL COURT OF AUSTRALIA QAAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1677 Judiciary Act 1903 (Cth) s 39B Migration Act 1958 (Cth) s 36(2), s 91R, s 475A QAAJ OF 2004 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS No Q 134 of 2004 SPENDER J BRISBANE 15 DECEMBER 2004 IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q 134 OF 2004 BETWEEN: QAAJ of 2004 APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: SPENDER J DATE OF ORDER: 15 DECEMBER 2004 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The application for review filed 17 September 2004 is dismissed. 2. The applicant pay the respondent's costs, to be taxed if not agreed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q 134 OF 2004 BETWEEN: QAAJ of 2004 APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: SPENDER J DATE: 15 DECEMBER 2004 PLACE: BRISBANE REASONS FOR JUDGMENT 1 This application seeks review pursuant to s 39B of the Judiciary Act 1903 (Cth) and s 475A of the Migration Act 1958 (Cth) ('the Act'), of a decision of the Refugee Review Tribunal ('the Tribunal') made on 26 May 2004, affirming a decision of the Minister's delegate to refuse a grant of a Protection (Class XA) visa pursuant to s 36(2) of the Act. 2 On such an application it is necessary for an appellant to establish that the Tribunal made a jurisdictional error in determining that the Protection (Class XA) visa was to be refused. The amended application of the applicant claims the Tribunal failed to take into account: a. the present and the future, particularly with reference to the fact that: i. the applicant does meet the criteria of serious harm under s 91R of the Act, because the applicant will suffer significant economic hardship or denial of access to basic services or denial of the capacity to earn a livelihood; ii. in reality, the Orthodox Church discriminates against and restricts other religions; b. the number of people who have left Romania due to economic hardship; c. the high unemployment and inflation rate; d. the applicant's age as a reason for her being unemployed; e. the delay in implementing the Romanian Government's proposals for economic reform. 3 The applicant before this Court sought to rely on an extensive amount of documentary and other material. That material, however, was not before the Tribunal. A consideration of the Tribunal's decision as to whether the applicant is a person to whom Australia has protection obligations has to be judged by reference to the facts, and the material that was before the Tribunal. The new material seeks to reinforce and re-argue the claims that were made before the Tribunal. 4 This approach reflects a misunderstanding of what power this Court has to interfere with, or set aside a decision of the Tribunal. The applicant fails to appreciate that a mere error of fact in the reasoning process of the Tribunal does not permit this Court to interfere. The new material is irrelevant to the issues that this Court has to decide. 5 The Tribunal correctly identified the test which it had to address. Section 36(2) of the Act provides that a criterion for a protection visa is the applicant for the visa is a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Such a person is one who comes within the definition of refugee in Article 1A(2) of the convention. Section 91R of the Act qualifies that article for the purpose of the application of the Act and Regulations to a particular person. 6 The essence of the applicant's case before the Tribunal was that she will face significant economic hardship or the denial of access to basic services or the capacity to earn a livelihood if she were to return to Romania. However, as the Tribunal recognised, she has to have not only a well founded fear of facing serious harm, but that she would, in the circumstances of this case, be exposed to that serious harm for reasons of political opinion or religion. The Tribunal found as a fact that there was no prospect of the applicant suffering serious harm for reasons of political opinion or religion. 7 There was no rejection of the difficulties that she might face on her return to Romania; the crucial finding was that the inability to find accommodation or employment would not be Convention related. While the applicant might disagree with this factual finding, and would wish to reargue it, it is not open to her to do that on an appeal seeking s 39B intervention in relation to the decision of the Tribunal. The Tribunal, in my judgment, correctly asked and considered matters relevant to the applicant's claim that she would face religious persecution on her return to Romania or that she would face political persecution on her return to Romania. 8 The applicant's challenge to the Tribunal's findings in those respects is a challenge to findings of fact. In my opinion, the Tribunal has made no jurisdictional error in the reasoning and findings that it made. It follows that this application has to be dismissed and the Court has to order that the applicant pay the respondent's costs of the application. 9 I should mention, however, that there is a reference in the reasons of the Tribunal to the applicant seeing a solicitor after she had seen how sick her daughter in Australia was, and the Tribunal recites that the solicitor advised her to apply for a carer's visa as she wanted to care for her daughter. 10 Ms Madeline Brennan of Counsel, who appears for the Minister, has helpfully informed the Court of events concerning the various applications for a visa by the applicant. The applicant arrived in Australia on 8 October 1998. Apparently, on 25 May 1999 she applied for a Class 806 family change in circumstances visa as a special needs relative. That application was refused on 30 September 1999. On 21 December 2001 the Migration Review Tribunal affirmed the primary decision. On 15 January 2002 there was a request for the Minister's intervention under s 351. That was not granted. 11 There were further approaches to the Minister on 6 February 2003, 6 May 2003, 23 June 2003 and 4 July 2003. I have been told that the points classification for entitlement to a visa of that kind increased during the period of correspondence but did not reach by 2003 the points level that was necessary for the grant of such a visa. The Court was informed that the final application for Ministerial intervention under s 351 was refused on 17 July 2003. 12 The application for a Protection (Class XA) visa was lodged on 3 October 2003. On 27 November 2003 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused to grant the protection visa, and on 23 December 2003 the applicant applied to the Refugee Review Tribunal to review that decision. On 26 May 2004 the Tribunal affirmed the decision not to grant to the applicant a protection visa. That decision was handed down on 16 June 2004 and notified to the applicant on 17 July. 13 Whether there is any other avenue available to the appellant, particularly having regard to the health of her daughter in Australia, who is an Australian citizen, and having regard to the three grandchildren of the applicant who are still of tender years, is conjectural. There is power in respect of a decision of the Tribunal for Ministerial intervention under s 417, but whether that has application in the present circumstances is unclear. 14 It is also necessary to have regard to the provisions of s 48 of the Act in relation to whether a non-citizen who is refused a visa or whose visa is cancelled may only apply for particular visas as specified in that section, although s 48 is restricted to a non-citizen in the migration zone. Whether a visa for a family member or for a carer's visa might still be open to the applicant, as I say, is unclear. It is a matter on which, it seems to me, the applicant should make proper inquiries for legal advice. 15 For the reasons which I expressed earlier, no jurisdictional error has been shown in the decision of the Refugee Review Tribunal to affirm the decision not to grant to the applicant a protection visa. 16 The application is dismissed with costs. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender. Associate: Dated: 20 December 2004 The applicant appeared on her own behalf, assisted by an interpreter Counsel for the Respondent: Ms Madeline Brennan Solicitor for the Respondent: Clayton Utz Date of Hearing: 15 December 2004 Date of Judgment: 15 December 2004