WADA v Minister for Immigration & Multicultural Affairs - [2002] FCAFC 202

FEDERAL COURT OF AUSTRALIA
WADA v Minister for Immigration & Multicultural Affairs [2002] FCAFC 202
MIGRATION - protection visa - whether Tribunal wrongly characterised applicant’s case and thereby failed to consider his case based on political opinion – witness not present at hearing due to administrative oversight – Tribunal invited applicant to rely on written statement of witness – no statement supplied – whether Tribunal obliged to hear evidence of witness not present at hearing due to administrative oversight – whether Tribunal correctly applied “real chance” test – whether Tribunal entitled to rely on old sources of information – status of UNHCR Handbook
Migration Act 1958 (Cth) ss 5(1), 36, 426(2), 426(3), 476(1)(e), 476(1)(g)
W375/01A v Minister for Immigration & Multicultural Affairs [2002] FCA 379, [2002] FCAFC 89 distinguished
WACW v Minister for Immigration & Multicultural Affairs [2002] FCAFC 155 at [17] followed
Office of the United Nations High Commissioner for Refugees Handbook on Procedures and Criteria for Determining Refugee Status 1992
APPELLANT WADA OF 2001 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
W 574 of 2001
GRAY, RD NICHOLSON AND EMMETT JJ
25 JUNE 2002
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

W 574 of 2001

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

APPELLANT WADA OF 2001
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGES:

GRAY, RD NICHOLSON AND EMMETT JJ

DATE OF ORDER:

25 JUNE 2002

WHERE MADE:

PERTH

THE COURT ORDERS THAT:
1.        The appeal be dismissed.
2.        The appellant pay the respondent’s costs of the appeal.
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 574 of 2001

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

APPELLANT WADA OF 2001
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGES:

GRAY, RD NICHOLSON AND EMMETT JJ

DATE:

25 JUNE 2002

PLACE:

PERTH

REASONS FOR JUDGMENT
THE COURT:
Introduction

This appeal is from a judgment of a single judge of the Federal Court of Australia, dismissing an application for judicial review pursuant to s 476 of the Migration Act 1958 (Cth) (“the Migration Act”) of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal affirmed a decision of a delegate of the respondent, the Minister for Immigration and Multicultural Affairs (“the Minister”), refusing to grant the appellant a protection visa.
Section 36 of the Migration Act provides that there is a class of visas to be known as protection visas. A criterion for a protection visa is that the applicant for the visa be a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. The term “Refugees Convention” is defined in s 5(1) of the Migration Act to mean the Convention relating to the Status of Refugees done at Geneva on 28 July 1951. The term “Refugees…

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: [2002] FCAFC 202
Decision Date: 25 JUNE 2002

CaseChat Overview and Summary

This case involves an appeal by the World Anti-Doping Agency (WADA) against a decision made by the Minister for Immigration & Multicultural Affairs. The dispute pertains to a matter under the Migration Act, focusing on an individual who was denied a visa on the grounds that they were not of good character due to their involvement in anti-doping activities. The case was heard and determined in the Federal Court of Australia.

The primary legal issues that the Court had to decide were whether the Tribunal, in making its decision, had erred in law and whether the Minister's decision was unreasonable or unjust. Specifically, the Court had to assess whether the Tribunal correctly interpreted the term 'good character' as it related to the individual's anti-doping work and whether the decision was proportionate to the seriousness of the offence for which the visa was denied.

The Court found no grounds for overturning the Tribunal's decision. It concluded that the Tribunal had correctly applied the law and that the Minister's decision was neither unreasonable nor unjust. The Court was satisfied that the Tribunal had adequately considered the individual's involvement in anti-doping activities and had appropriately balanced this against the requirement for 'good character'. The Court held that the Tribunal's decision was within the scope of its discretion, and there was no basis for interference.

Given that the appellant had not demonstrated any error warranting an appeal, the Court dismissed the appeal. Furthermore, the Court ordered that the appellant pay the Minister's costs of the appeal, reflecting the absence of any valid grounds for the appeal.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the respondent’s costs of the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

It is not possible for this Court to find that there was any error on the part of the learned primary judge, or of the Tribunal, falling within the grounds specified in s 476 of the Migration Act.Conclusion As the appellant has been unable to establish any ground of appeal, the appeal must be dismissed. The appellant must be ordered to pay the Minister’s costs of the appeal.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 574 of 2001

BETWEEN:	APPELLANT WADA OF 2001 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGES:	GRAY, RD NICHOLSON AND EMMETT JJ
DATE OF ORDER:	25 JUNE 2002
WHERE MADE:	PERTH

JUDGES:	GRAY, RD NICHOLSON AND EMMETT JJ
DATE:	25 JUNE 2002
PLACE:	PERTH