Anavaratham v Minister for Immigration and Multicultural Affairs

[2002] FCAFC 22

Anavaratham v Minister for Immigration and Multicultural Affairs

[2002] FCA 134

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

Anavaratham v Minister for Immigration and Multicultural Affairs [2002] FCA 134

MIGRATION – application for a protection visa – national of Sri Lanka - Refugee Review Tribunal found that “effective protection” was available to the appellant in India, and, in the alternative, that the appellant had no well - founded fear of persecution for a Convention reason in the event of a return to Sri Lanka – whether judge erred in finding that there was no there was no error in the Tribunal’s findings.

Migration Act 1958 (Cth)

ANAVARATHAM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V795 OF 2001

BLACK CJ, HILL AND TAMBERLIN JJ

13 FEBRUARY 2002

MELBOURNE

On appeal from a single judge of the Federal Court of Australia

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.

On appeal from a single judge of the Federal Court of Australia

REASONS FOR JUDGMENT

BLACK CJ

1                     This is an appeal from a decision of Justice Ryan, rejecting the appellant’s application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) affirming a decision of a delegate of the respondent Minister to refuse the appellant a protection visa.  The relevant facts, and the grounds on which the appellant sought review of the Tribunal’s decision, are set out in his Honour’s reasons:  See Anavaratham v Minister for Immigration and Multicultural Affairs [2001] FCA 903.  We have closely read his Honour’s reasons, and the other papers filed in this appeal.

2                     The appellant’s notice of appeal dated 6 August 2001 contains two grounds:

“1.       The learned judge erred in failing to hold that the Refugee Review Tribunal (“the Tribunal”) erred by not engaging itself in reasonable speculation as to the chances of persecution upon me returning to Sri Lanka.

2.         The learned judge erred in failing to find that the Tribunal had incorrectly applied the test as laid down by the Convention relating to the Status of Refugees, namely that it did not take into account that as it was not possible for me to return to India and live there without being deported to Sri Lanka.”

3                     It is important to understand that the role of the Court in a case such as this is a limited one.  Under the Migration Act 1958 (Cth) (“the Act”), the Tribunal has the function of determining what are the merits of an application for a protection visa.  Under Part 8 of the Act, there is a right to apply for judicial review to this Court on limited grounds of a legal and not factual nature.  The learned primary judge examined with care the legal arguments that were said to give rise to points of law in this case and he concluded that those arguments had not been made out.  For ourselves, we do not find any error in the learned primary judge's conclusion that no ground for judicial review of the Tribunal’s decision had been made out in this case. 

4                     Mr Anavaratham sought before us, as he did before Ryan J, to argue various questions of fact about matters that were of great concern to him.  I would again point out, however, that questions of fact are for the Tribunal to determine and it is not for this Court to look again at the facts of the case, or to receive further evidence, or review the facts in the manner sought by Mr Anavaratham.  The result is that, in our opinion, the appeal from the decision of the learned primary judge must be dismissed, with costs. 

HILL J

5                     I agree with the reasons given by the Chief Justice and with the orders that his Honour has proposed.

TAMBERLIN J

6                     I also agree with the reasons of the Chief Justice and the orders proposed.

Associate:

Dated:              26 February 2002