VGAB v Minister for Immigration - [2003] FMCA 363

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VGAB v MINISTER FOR IMMIGRATION

[2003] FMCA 363

MIGRATION – Review of decision of Refugee Review Tribunal – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth)

Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24
Kioa v West (1985) 159 CLR 550
Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553, 558
W148/00A v Minister for Immigration and Multicultural Affairs (2001) FCA 679

Applicant:

VGAB

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MZ988 of 2002

Delivered on:

27 August 2003

Delivered at:

Melbourne

Hearing Date:

12 August 2003

Judgment of:

Hartnett FM

REPRESENTATION

Counsel for the Applicant:

Mr A Hands

Counsel for the Respondent:

Dr S Donaghue

Solicitors for the Respondent:

Australian Government Solicitor

ORDER

The application is dismissed.
The applicant is to pay the respondent's costs and disbursements of and incidental to the application pursuant to the Federal Magistrates Court Rules 2001.
It is certified that pursuant to r 21.15 of the Federal Magistrates Court Rules 2001 this matter reasonably required the attendance of counsel as advocate.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ988 of 2002

VGAB

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant arrived in Australia on 22 March 2000 at Sydney Airport as a member of the Sri Lankan Lifesaving Association, that Association then competing in the World Lifesaving Championships in Australia.
On 6 April 2000 the applicant lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural Affairs. On 30 June 2000 a delegate of the Minister refused to grant a protection visa.
The applicant applied to the Refugee Review Tribunal (RRT) for review of the delegate's decision. On 20 June 2002 the Tribunal affirmed the delegate's decision, finding that it was not satisfied that the applicant was a person to whom Australia owed protection obligations.
On 12 August 2002 the applicant applied to the Federal Court to review that decision and the matter finally proceeded before me on

12 August 2003. Counsel for the applicant appeared in a pro bono capacity and the Court is grateful for the assistance he provided to the applicant.
By way of preliminary point, I note that the amended application asserted that the decisions under challenge were both the decision of the Tribunal and the earlier delegate's decision. The delegate's decision was reviewed by the Tribunal. Section 415 of the Migration Act 1958 (Cth) (the Act) provides that when conducting that review the Tribunal may exercise all of the powers and discretions that are conferred by the Act on the person who made the decision. That application involved a full merits review. See Minister for Immigration and Multicultural Affairs; ex parte Miah (2001) 206 CLR 57. The decision with which I am concerned and which is the effective decision is that of the Tribunal.

Refugee Review Tribunal hearing

In addition to the documentary evidence before the…

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: [2003] FMCA 363
Decision Date: 27 August 2003

CaseChat Overview and Summary

The Federal Magistrates Court of Australia heard the case of VGAB, an applicant from Sri Lanka, against the Minister for Immigration and Multicultural and Indigenous Affairs. VGAB had applied for a protection visa after arriving in Australia, claiming he was a member of the Sri Lankan army who had witnessed and participated in extrajudicial killings and mass burials. He further alleged that he feared for his life if he returned to Sri Lanka. The Refugee Review Tribunal (RRT) rejected his claims and affirmed the decision of the delegate of the Minister. VGAB sought judicial review of the RRT's decision, contending that the Tribunal had asked the wrong question and did not consider his evidence credible.

The legal issues in this case included whether the RRT had committed any jurisdictional error, failed to comply with natural justice, or made any errors in the assessment of the applicant's credibility. The Court needed to determine if the RRT's decision was lawful and based on proper consideration of the evidence and arguments presented by VGAB.

Federal Magistrate Hartnett held that the RRT had not committed any jurisdictional error or failed to comply with the principles of natural justice. The Court found that the RRT had directed its mind to the correct legal question and that the Tribunal's inquiry was designed to afford VGAB an opportunity to put forward any material in support of his claims. The Magistrate concluded that the Tribunal's credibility findings were open on the evidence and that there was no basis for a claim of apprehended or actual bias. The decision was clearly open on the facts before the Tribunal, and there was no jurisdictional error or denial of natural justice. The application was dismissed, and VGAB was ordered to pay the respondent's costs.

Orders