“WAAR” v Minister for Immigration and Multicultural Affairs

[2002] FCA 105

“WAAR” v Minister for Immigration and Multicultural Affairs
[2002] FCAFC 11

“WAAR” v Minister for Immigration and Multicultural Affairs [2002] FCA 105

NOTE: CHANGES TO THE MEDIUM NEUTRAL CITATION (MNC)

The Federal Court adopted a new medium neutral citation (FCAFC) for Full Court judgments effective from 1 January 2002.  Single Judge judgments will not be affected and will retain the FCA medium neutral citation.

The transitional arrangements are as follows:

• All Full Court judgments delivered prior to 1 January 2002 will retain the FCA medium neutral citation.
• All Full Court judgments delivered between 1 January 2002 to 30 April 2002 have been assigned parallel medium neutral citations in both the FCA and FCAFC series. 
• All Full Court judgments delivered from 1 May 2002 will contain the FCAFC medium neutral citation only.

FEDERAL COURT OF AUSTRALIA

“WAAR” v Minister for Immigration and Multicultural Affairs [2002] FCA 105

“WAAR” v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
W 478 OF 2001

DRUMMOND, MANSFIELD AND EMMETT JJ
PERTH
11 FEBRUARY 2002

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 478 OF 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	“WAAR” APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGES:	DRUMMOND, MANSFIELD AND EMMETT JJ
DATE OF ORDER:	11 FEBRUARY 2002
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The application for leave to appeal be refused with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 478 OF 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	“WAAR” APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGES:	DRUMMOND, MANSFIELD AND EMMETT JJ
DATE:	11 FEBRUARY 2002
PLACE:	PERTH

REASONS FOR JUDGMENT

1. DRUMMOND J:     The appellant appeals from a decision of Hill J given ex tempore on 22 August 2001.  His appeal was filed on 9 October 2001.  That is well out of the twenty-one days allowed to bring an appeal under the Rules of this Court.  However, Hill J’s certified reasons for judgment were only issued on 18 September 2001, and though the appellant’s right is to appeal from the judgment given on 22 August, in his notice of appeal he identifies the judgment by reference to the date the certified reasons were issued.

2. The Minister has objected on the ground that the appeal is out of time and cannot be dealt with unless the appellant first obtains leave to appeal out of time.  The appellant’s appeal was lodged with the Court within the twenty-one day period after the certified reasons of 18 September 2001 became available.  In these circumstances, the Court would not reject the appellant’s appeal on the technical ground, that he put his notice of appeal in too late, if there was any real merit in his appeal.

3. The Court has therefore invited the appellant to identify any defects or errors in Hill J’s judgment.  Unfortunately, I cannot myself see any deficiencies in Hill J’s reasons.  Whether a person like the appellant is entitled to be recognised as a refugee and to be granted a protection visa of the kind he sought is dependent upon the view of the merits formed by the Minister’s delegate and then, on review, by the Refugee Review Tribunal.  It is for the Minister’s delegate in the first instance and then the Refugee Review Tribunal to look at the facts of the case, form a view on what those facts show, and determine whether a person like the appellant should be granted a protection visa.  Under the Migration Act 1958 (Cth), the Federal Court is not permitted to investigate the facts of this or any similar case. Neither Hill J nor this Court is entitled to form its own view on whether the appellant should be given a protection visa as a refugee.

4. Hill J was confined to considering whether the Refugee Review Tribunal had exercised its powers properly.  He had no power to determine whether the Tribunal wrongly refused the protection visa that the appellant sought.  In its turn, this Court’s powers are limited to correcting any errors made by Hill J.  I can see no error in Hill J’s reasons.

5. The appellant has put a number of matters to this Court.  But, as he did at the hearing before Hill J, they are all, in my opinion, arguments why the Tribunal arrived at a wrong view of the facts.  In my opinion, the appellant has failed to identify any error in the procedures followed by the Tribunal, as opposed to the conclusion reached by the Tribunal.  For this reason, he has failed to demonstrate any error in Hill J’s reasons which would permit this Court to allow his appeal.

6. In my opinion, because the appeal is doomed to fail, even if we were to give the appellant permission to appeal out of time, I would refuse to extend the time for appeal and dismiss the appeal on that basis.

7. MANSFIELD J:       I agree with the reasons for decision by the learned presiding judge and the orders which he proposes.

8. EMMETT J:             I agree that the appellant has not shown any error on the part of Hill J in dealing with the appellant’s application for an order of review of the decision of the Tribunal.  Accordingly, I agree that time for lodging an appeal should not be extended and that leave to appeal should be refused with costs.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond, the Honourable Justice Mansfield and the Honourable Justice Emmett.

Associate:

Dated:             13 February 2002

Counsel for the Appellant:	The appellant appeared on his own behalf.
Counsel for the Respondent:	Mr MT Ritter
Solicitor for the Respondent:	Crown Solicitor’s Office
Date of Hearing:	11 February 2002
Date of Judgment:	11 February 2002