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NAAH v Minister for Immigration

NAAH v Minister for Immigration

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FEDERAL COURT OF AUSTRALIA
NAAH v Minister for Immigration & Multicultural & Indigenous Affairs
[2002] FCAFC 354
MIGRATION – protection visa – decision of Refugee Review Tribunal – “lack of reasonableness as to jurisdiction” – whether failure to be satisfied as to criteria can be judged by standard of reasonableness – whether tribunal’s conclusions as to facts against all of evidence, or not based on probative material or logical reasoning
Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth) ss 65(1), 91R(3), 474
NAAG of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 713 considered
R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 59 at 615 referred to
NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 applied
Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [127] – [156] discussed
R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 referred to
NAAH OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 535 of 2002
GRAY, MOORE AND WEINBERG JJ
15 NOVEMBER 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 535 of 2002

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

BETWEEN:

NAAH OF 2002
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGES:

GRAY, MOORE AND WEINBERG JJ

DATE OF ORDER:

15 NOVEMBER 2002

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The appeal be dismissed.

2.The appellant pay the respondent’s costs of the appeal.

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 535 of 2002

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

BETWEEN:

NAAH OF 2002
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGES:

GRAY, MOORE AND WEINBERG JJ

DATE:

15 NOVEMBER 2002

PLACE:

SYDNEY

REASONS FOR JUDGMENT
THE COURT:
The nature of the proceeding

This appeal is from a judgment of a judge of the Court, Allsop J. His Honour dismissed with costs an application by the appellant for relief pursuant to s 39B of the Judiciary Act 1903 (Cth) in respect of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs (now the Minister for Immigration and Multicultural and Indigenous Affairs, collectively “the Minister”), refusing to grant to the appellant a protection visa, pursuant to the Migration Act 1958 (Cth) (“the Migration Act”).
Section 36 of the Migration Act provides that there is a class of visas known as protection visas. A criterion for a protection visa is that the applicant for the visa be a non-citizen in Australia to whom Australia has protection obligations, under the Refugees Convention as amended by the Refugees Protocol. The term “Refugees Convention” is defined in s 5(1)…

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: [2002] FCAFC 354
Decision Date: 15 NOVEMBER 2002

CaseChat Overview and Summary

In the case of NAAH v Minister for Immigration, the appellant challenged the decision of the Tribunal to reject his application for a protection visa. The grounds of appeal included claims that the Tribunal denied him natural justice by failing to warn him about potential rejections of his claims and by not allowing him an opportunity to provide further material or submissions. The appellant's claims pertained to his participation in an anti-Rafsanjani demonstration and his conversion to Christianity.

The primary legal issue before the court was whether the Tribunal's actions constituted a denial of natural justice, thereby undermining its jurisdiction. The court examined whether the Tribunal should have warned the appellant about the potential rejection of his claims and provided him an opportunity to respond. The court found that the appellant had been fully aware of the potential outcomes of his claims and that there were no unforeseen factors used as a basis for rejecting his claims. Thus, the court concluded that the Tribunal had not acted unreasonably.

The court dismissed the appellant's appeal on multiple grounds. Firstly, the appeal could not survive under section 474 of the Migration Act, based on the findings in a related case, NAAV. Additionally, the court determined that the appellant had not established that the Tribunal acted unreasonably, failed to exercise its jurisdiction, or denied him natural justice in a manner that affected its jurisdiction. The appeal was therefore dismissed, and the appellant was ordered to pay the Minister's costs of the appeal.

The court's orders included dismissing the appeal and directing the appellant to pay the respondent's costs. This ruling underscored the importance of procedural fairness and the necessity for appellants to substantiate their claims of jurisdictional errors.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the respondent’s costs of the appeal.

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

GRAY, MOORE AND WEINBERG JJ

The appellant’s case on denial of natural justice was that the Tribunal should have warned him that it proposed to reject his claim in relation to his participation in the anti-Rafsanjani demonstration in May 2000, and to find that his conversion to Christianity was not genuine. It should have given him an opportunity to supply further material, or make further submissions in relation to those issues. This argument is entirely without foundation. Both of the claims concerned were advanced by the appellant and supported by such material as he thought fit, or was able, to provide. In any such case, it is obvious that the claim might be rejected. There was no factor unknown to the appellant used as a reason for rejecting either claim.Conclusion The appellant’s appeal must fail, not only because of the concession that it cannot survive s 474 of the Migration Act, in the light of the conclusions of the Court in NAAV as to that section, but also because, aside from s 474, the appellant has failed to make out any of the particulars of the grounds in his notice of appeal. He has failed to establish that the Tribunal acted so unreasonably as to give rise to a want of jurisdiction, that it failed actually or constructively to exercise jurisdiction, or that it denied the appellant natural justice in a way that undermined its jurisdiction. The appeal must be dismissed. The ordinary rule that costs follow the event should apply and the appellant should be ordered to pay the Minister’s costs of the appeal.

Ratio Decidendi

Legal Principle Established

Established by: GRAY, MOORE AND WEINBERG JJ

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 535 of 2002

BETWEEN:	NAAH OF 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	GRAY, MOORE AND WEINBERG JJ
DATE OF ORDER:	15 NOVEMBER 2002
WHERE MADE:	SYDNEY

JUDGES:	GRAY, MOORE AND WEINBERG JJ
DATE:	15 NOVEMBER 2002
PLACE:	SYDNEY