Applicants 325/2002 v Refugee Review Tribunal - [2006] FCAFC 59

FEDERAL COURT OF AUSTRALIA
Applicants 325/2002 v Refugee Review Tribunal [2006] FCAFC 59
PRACTICE & PROCEDURE – history of litigation in the Refugee Review Tribunal, Federal Court and High Court involving husband wife and two sons as applicants for refugee status – earlier segments of litigation favourable to appellants – ultimate proceedings in Federal Court at first instance pursued unsuccessfully by present appellants – objection to competency of ultimate application for leave to review or appeal from Federal Court decision at first instance – issues raised on ultimate application for leave to appeal addressed in any event – all issues resolved in favour of Minister
Federal Court of Australia Act 1976 (Cth), ss 23, 24(1AAA), 25(2B), s 25(2)
Migration Act 1958 (Cth) s 417
Applicants S61 of 2002 v Refugee Review Tribunal (2004) 206 ALR 461 discussed
BZAC v Refugee Review Tribunal [2005] FCA 675 applied
Minister for Immigration and Multicultural and Indigenous Affairs v Applicants S194 of 2002 (2003) 79 ALD 715 discussed
NAHQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 377 cited
NBDW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 63 discussed
Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 cited and distinguished
APPLICANTS 325/2002 v REFUGEE REVIEW TRIBUNAL AND COMMONWEALTH OF AUSTRALIA
NSD 313 OF 2005
MOORE, NICHOLSON AND CONTI JJ
18 MAY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 313 OF 2005

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

APPLICANTS 325/2002
APPELLANTS

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

COMMONWEALTH OF AUSTRALIA
SECOND RESPONDENT

JUDGE:

MOORE, NICHOLSON AND CONTI JJ

DATE OF ORDER:

18 MAY 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The application for leave to appeal to the extent required or any appeal otherwise validly on foot be dismissed.

2.The applicants for leave to appeal, or otherwise the appellants, pay the respondents’ costs of the application for leave to appeal or of the appeal (as the case may be).

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

NSD313 OF 2005

BETWEEN:

APPLICANTS S325 of 2002
APPLICANTS

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

COMMONWEALTH OF AUSTRALIA
SECOND RESPONDENT

JUDGES:

MOORE, NICHOLSON AND CONTI JJ

DATE:

18 MAY 2006

PLACE:

SYDNEY

REASONS FOR JUDGMENT
MOORE J

I have had the advantage of reading the reasons for judgment of Conti J in a draft form. Subject to the following observations, I generally agree with his Honour's reasons for rejecting each of the proposed grounds of appeal and refusing leave to appeal from both the suppression orders and the order refusing an order nisi. The issue of whether a single judge has power to dismiss an appeal as incompetent no longer arises because the purported appeal has now been dealt with by this Full Court.
The primary judge ultimately dismissed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] FCAFC 59
Decision Date: 18 May 2006

CaseChat Overview and Summary

The applicants in the case sought leave to appeal against a decision of the Refugee Review Tribunal, with the primary judge, Wilcox J, making a decision on 11 February 2005. The case involved a family who had been granted protection visas in Australia, and the applicants were seeking to remain in the country. The court was required to decide whether the applicants had demonstrated a sufficiently viable basis for the grant of leave to appeal, and whether the applicants had made out any viable grounds for appeal that required the setting aside of the primary judge’s decision.

The court found that the applicants had not demonstrated any sufficiently viable basis for the grant of leave to appeal, and if leave to appeal was not required, the applicants had not made out any viable grounds for appeal. The court noted that the applicants had become aware of the circumstances prior to the Tribunal’s decision, and therefore the omission of consideration of the character reference of the headmaster was not a significant factor in the case. The court also commended for reconsideration by the Minister certain factors concerning the family that may warrant their remaining in Australia upon some appropriate visa basis.

The court dismissed the application for leave to appeal, and ordered that the applicants pay the respondents’ costs of the application for leave to appeal or of the appeal (as the case may be). The court’s decision was based on the evidence presented and the legal issues that arose in the case.

Orders

Orders of the court

1. The application for leave to appeal to the extent required or any appeal otherwise validly on foot be dismissed.

2. The applicants for leave to appeal, or otherwise the appellants, pay the respondents’ costs of the application for leave to appeal or of the appeal (as the case may be).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I would accept the Commonwealth’s response that even if so much would support such an inference as to omission of consideration of the character reference of the headmaster, it was further the case that [the wife] had become aware of that circumstance prior to the Tribunal’s decision. Conclusions It follows from the events and circumstances to which I have referred and reviewed that the application for leave to appeal to the Full Court from the decisions of the primary judge (Wilcox J) made on 11 February 2005 have not demonstrated any sufficiently viable basis for the grant of leave to appeal, and if leave to appeal not be required, the applicants have not made out any viable grounds for appeal in any event, such as to require the setting aside of the decision of the primary judge. Whilst cognisant of the confined scope of the issues arising on the appeal, I would nevertheless commend for reconsideration by the Minister, pursuant to s 417 of the Migration Act 1958 (Cth), the following factors concerning this evidently unfortunate family, which may conceivably be thought to render permissible their remaining in Australia upon some appropriate visa basis. They are factors which might warrant reconsideration upon grounds divorced from the issues that have arisen for resolution on the appeal, being factors to which reference has already been made in the course of the reasons for judgment:(i)the unfortunate circumstances which befell the appellants in Belgium, prior of course to their departure for Australia, and at least the physical injuries caused by the fire to the applicant husband and wife;(ii)the residence of the appellants continuously in Australia since arrival from Belgium eleven years ago, and the extent to which they appear from the evidence to have adapted to residence in Australia, including the apparently successful schooling of the two sons, and the apparently gainful employment or self employment in Australia of individual family members over seemingly a substantial period of time;(iii)the birth and schooling of the daughter born in Australia, she not being of course an applicant in the proceedings;(iv)the finding as to genuine subjective fear made by the Tribunal in its reasons for decision of 21 December 1998; and(v)the evident support apparently provided to the appellants by the wider Australian community generally, to an extent seemingly implying significant respect as well as sympathy.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 313 OF 2005

BETWEEN:	APPLICANTS 325/2002 APPELLANTS
AND:	REFUGEE REVIEW TRIBUNAL FIRST RESPONDENT COMMONWEALTH OF AUSTRALIA SECOND RESPONDENT
JUDGE:	MOORE, NICHOLSON AND CONTI JJ
DATE OF ORDER:	18 MAY 2006
WHERE MADE:	SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD313 OF 2005

JUDGES:	MOORE, NICHOLSON AND CONTI JJ
DATE:	18 MAY 2006
PLACE:	SYDNEY