VWAL v MIMA and Anor

[2006] HCATrans 693

[2006] HCATrans 693

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M54 of 2006

B e t w e e n -

VWAL

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 14 DECEMBER 2006, AT 9.38 AM

Copyright in the High Court of Australia

KIRBY J:   The applicant is a national of Sri Lanka.  She arrived with her husband and their two children, also nationals of Sri Lanka, in March 2000.  In September 2001, they applied for protection visas.  In April 2002, a delegate of the Minister refused their application.  The applicants then sought review by the Refugee Review Tribunal (“the Tribunal”).  That review was conducted and, on 6 October 2003, the Tribunal affirmed the decision not to grant the appellants protection visas. 

The applicant wife then applied to the Federal Magistrates Court for judicial review.  On 15 March 2005, McInnis FM, whilst acknowledging “criticisms which are properly levelled at the fact‑process of the” Tribunal, in relation to some aspects of its reasoning, ultimately reached a conclusion that the Tribunal’s decision was not one “where there is sufficient jurisdictional error to cause this court to intervene”.  McInnis FM therefore dismissed the application for judicial review.

An appeal was taken to the Federal Court of Australia.  The appellate jurisdiction of that court was exercised by Ryan J.  His Honour repeated the arguable defects of factual reasoning in the decision of the Tribunal, to which McInnis FM had referred.  However, like the Federal Magistrate, Ryan J rejected the application for judicial intervention.  In doing so, he applied well-known authority of this Court.  That authority cautions against attempts to transform applications for judicial review into redetermination of the factual merits of the case.  Citing Mason CJ in Australian Broadcasting Tribunal v Bond(1990) 170 CLR 321 at 355‑356, Ryan J noted that there was “no error of law simply in making a wrong finding of fact”. He referred to, and applied, Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 629 and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351. On the basis of this authority and his review of the record, Ryan J dismissed the appeal.

The applicant wife has now sought special leave to appeal to this Court.  The application is effectively brought for herself and the other members of her family, whose claims are derivative.  The applicant’s written case repeats the complaints about the imperfect reasoning of the Tribunal. 

The mere assertion by the Tribunal of a lack of credibility on the part of an applicant for a protection visa is not determinative of a claim to refugee status.  As Hely J pointed in W70/2001 v Minister for Immigration and Multicultural Affairs[2001] FCA 1159, cited by McInnis FM, “in some cases a bare statement by a decision-maker that a claimed circumstance is ‘not credible’ or is ‘implausible’ may cloak the failure of the decision‑maker to address and resolve a material question of fact”.

We have carefully considered the applicant’s written case.  We understand the factual complaints that are made by her.  However, amongst the facts, it remains uncontested that the applicant wife (and her family) were able to leave Sri Lanka without difficulty, using Sri Lankan passports – an important fact that tends to support the Tribunal’s factual conclusion that there was no real chance that the applicant wife was wanted by the Sri Lankan authorities and would be persecuted by them on return to that country. 

Quite apart from this important factual element in the Tribunal’s conclusions, the complaints made by the applicant do not demonstrate a reasonable argument of error of law or want of jurisdiction, that would attract the intervention of this Court.

On this footing the application for leave to appeal to this Court must be dismissed.

Because the applicant is unrepresented, the application for special leave falls to be dealt with in accordance with Rule 41.10 of the High Court Rules 2004. Pursuant to Rule 41.10.5, we direct the Registrar to draw up, sign and seal an order dismissing the application. I publish that disposition signed by Callinan J and myself.

AT 9.42 AM THE MATTER WAS CONCLUDED