Tontegode v Minister for Immigration & Multicultural Affairs
[2001] FCA 960
•16 JULY 2001
FEDERAL COURT OF AUSTRALIA
Tontegode v Minister for Immigration & Multicultural Affairs
[2001] FCA 960Migration Act 1958 (Cth) ss 476(1)(a), 476(1)(c), 476(1)(g), 476(4)(b)
FELIKSS TONTEGODE and LULIJA KOPIJEVSKA v MINISTER FOR IMIGRATION AND MULTICULTURAL AFFAIRS
N 137 OF 2001GYLES J
SYDNEY
16 JULY 2001
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 137 OF 2001
BETWEEN:
FELIKSS TONTEGODE and LULIJS KOPIJEVSKA
APPLICANTSAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENTJUDGE:
GYLES J
DATE OF ORDER:
16 JULY 2001
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the respondent’s 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 137 OF 2001
BETWEEN:
FELIKSS TONTEGODE and LULIJA KOPIJEVSKA
APPLICANTSAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT
JUDGE:
GYLES J
DATE:
16 JULY 2001
PLACE:
SYDNEY
REASONS FOR JUDGMENT (EX TEMPORE)
On 23 January 2001 the Refugee Review Tribunal (“the Tribunal”) published its reasons for a decision which it made on 28 December 2000 to affirm the delegate's decision to refuse an application for a protection visa for the applicants. The first applicant arrived as a temporary business entrant in Australia in February 1999. He holds a Latvian passport which he says is an alien's passport as he is without Latvian citizenship and, indeed, the Tribunal found that he was stateless. His place of birth was Leningrad, Russia.
The second applicant is the first applicant's spouse and was included in his application for a protection visa. She did not make any Convention claims in her own right.
In the application to this court three grounds of review were nominated by the applicants. The first was non-observance of procedures in breach of s 476(1)(a) of the Migration Act 1958 (Cth) (“the Act”). In what Mr Tontegode has put to me today, reference was also made in passing to s 430 of the Act and that may be linked with the s 476(1)(a) ground. However, as counsel for the respondent has submitted, the recent decision of the High Court in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 effectively rules out that ground even if there were an argument available in relation to it.
The second ground nominated was a breach of s 476(1)(c) of the Act. No particulars of this ground were given and there has been no supplementation of it notwithstanding orders of the court requiring that any such supplementation be done prior to the hearing. No argument has been advanced which would support this ground. The third ground is that there was no evidence or other material to justify the making of the decision and it is to this ground that the remarks of Mr Tontegode today appear to have been addressed.
Mr Tontegode referred in the course of those remarks to s 476(1)(g) and s 476(4)(a) of the Act. As counsel for the respondent submitted s 476(4)(a) is inappropriate and I would understand the submission to be that the matter would come within s 476(4)(b).
The burden of the argument of Mr Tontegode has been that the Tribunal was illogical and inconsistent in accepting a good deal of what the applicants put, but nonetheless rejected the claim.
Furthermore, Mr Tontegode undoubtedly feels a grievance because, in his view at least, the Tribunal paid too much attention to the formalities of the law of Latvia and to the views of some international organisations without any real understanding of how in practice those laws worked or did not work, the net result of which was that there was the kind of discrimination which he had claimed. He also submits that the Tribunal was not entitled to reject his claim of incidents of persecution or harassment.
The difficulty which faces the applicant in this court is that decisions of fact are entirely a matter for the Tribunal. This court has no role as an appeal court against decisions of the Tribunal on questions of fact.
Counsel for the respondent submits that the decision in question turned upon questions of fact that were open to the Tribunal on the material before it and that in the circumstances of this case s 476(1)(g) of the Act has no operation. In my opinion, that submission is plainly correct.
In my view, the complaints which are made about the Tribunal's decision are complaints about the way in which the Tribunal went about its fact finding task and about the facts which it actually found. This does not satisfy the test which the authorities lay down as to s 476(1)(g) of the Act, and there is no argument advanced which would, in any event, show how s 476(4)(b) could be satisfied in the circumstances of this case.
I harboured some initial concerns regarding the issue of statelessness. However, having heard from counsel for the respondent and having in mind the material which was before the Tribunal, including material put by the applicants, it seems to me there can be no attack upon the Tribunal’s decision in this respect. Therefore, although I have no doubt about the genuineness of the grievance which is felt by Mr Tontegode on behalf of the applicants, this is not a case in which this court has any role in acting as a review tribunal from the Tribunal, and I am compelled to dismiss the application. In the absence of any particular circumstances I order that the applicant pay the costs of the respondent.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate:
Dated: 23 July 2001
The Applicant was self-represented. Counsel for the Respondent: R Beech-Jones Solicitor for the Respondent: Clayton Utz Date of Hearing: 16 July 2001 Date of Judgment: 16 July 2001
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