VCAC of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 60

FEDERAL COURT OF AUSTRALIA

VCAC of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 60

MIGRATION – application for a protection visa – not a reviewable decision

Migration Act 1958 (Cth) ss 36(2) and 474(1)
Federal Court of Australia Act 1976 (Cth) s 25(1A)

R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 - cited

APPLICANT VCAC OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
V 722 OF 2002

MERKEL J
4 FEBRUARY 2003
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 722 OF 2002

BETWEEN:	APPLICANT VCAC OF 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MERKEL J
DATE OF ORDER:	4 FEBRUARY 2003
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The appeal 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
VICTORIA DISTRICT REGISTRY	V 722 OF 2002

BETWEEN:	APPLICANT VCAC OF 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MERKEL J
DATE:	4 FEBRUARY 2003
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The appellant is a citizen of Bangladesh.  He left Bangladesh in June 1999, and arrived in Australia on a Business Visa.  After his arrival in Australia the appellant lodged an application for a protection visa, which was refused by a delegate of the Minister.  The Refugee Review Tribunal (“the RRT”) affirmed the decision of the delegate.

2. The appellant applied to the Federal Magistrates’ Court under Part 8 of the Migration Act 1958 (Cth) (“the Act”) for a review of the decision of the RRT. On 2 October 2002 Bryant CFM dismissed the application with costs. The appellant appealed to the Federal Court against the decision of the Chief Federal Magistrate. On 16 December 2002 the Chief Justice ordered that pursuant to s 25(1A) of the Federal Court of Australia Act1976 (Cth) the appeal should be heard and determined by a single judge of the Court.

3. Before the RRT the appellant claimed he fears persecution on the grounds of his political activities should he be forced to return to Bangladesh.  He claimed that he had been imprisoned and had been mistreated by the Bangladeshi authorities on the basis of his political support for the Bangladesh National Party.  The RRT formed an adverse view of the appellant’s credibility and concluded it was unable to accept his account of his experiences upon which he relied to found his claim of having a well-founded fear of political persecution if he were returned to Bangladesh.  Accordingly, the RRT concluded that it was not satisfied that the appellant was a person to whom Australia had protection obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967, with the consequence that he did not satisfy the criterion set out in s 36(2) of the Act for a protection visa.

4. Bryant CFM concluded that no grounds had been established by the applicant to review the RRT’s decision. The CFM held that the privative clause in s 474(1) of the Act excluded review of the decision, and there was nothing to suggest that the decision fell within any of the exceptions set out in the judgment of Dixon J in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598. She also held that the credibility of the appellant was a question of fact for the RRT, and no ground for reviewing its decision had been made out.

5. On his appeal the appellant, was unrepresented but had the assistance of an interpreter.  His grounds of appeal were that “There is not enough hearing some mistakes on previous hearings.”  In explaining his grounds of appeal the appellant raised a number of issues of fact.  The matters raised by the appellant are questions of fact which were for the RRT to decide.  As explained above the RRT based its decision essentially on its finding that the appellant was not a credible witness.  The finding was made on the basis of the material before the RRT, and it was not shown that this finding involved any procedural or legal error on the part of the RRT.  Further nothing has been put before that suggests any error of law on the part of the CFM.  In these circumstances the appellant has failed to make out any ground of appeal.

6. Accordingly, the appeal is to be dismissed with costs.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel .

Associate:

Dated:             11 February 2003

For the Appellant:	Appeared in person
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	4 February 2003
Date of Judgment:	4 February 2003