FEDERAL COURT OF AUSTRALIA

A v Minister for Immigration & Multicultural Affairs [1999] FCA 630

A v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 17 OF 1999

SPENDER, MOORE and EMMETT JJ

10 MAY 1999

SYDNEY

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

THE COURT ORDERS THAT:

The appeal be dismissed with costs.

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

SPENDER J:

1                     This is an appeal from an order of a single judge of this Court, Katz J, who on 31 December 1998 dismissed an application by the appellant, A, for review of a decision of the Refugee Review Tribunal made on 14 September 1998, affirming an earlier decision of a delegate of the Minister made on 23 April 1998 to refuse to grant to A a protection visa.

2                     There were only two grounds argued before the learned primary judge, but A does not seek to rely on either of these grounds in this appeal.  Further, two grounds that appear in the written notice of appeal seem to have been formulated by A by copying part of a notice of appeal filed by another person in different circumstances.  However, A has indicated to this Court that he does not rely on the grounds in the notice of appeal.  Instead, he says that the Refugee Review Tribunal was wrong in rejecting his claim that he had a well-founded fear of persecution should he be returned to Libya.  He says that there is material now available to him, obtained subsequent to the Tribunal’s decision, which would assist in his challenge to the correctness of the Tribunal’s conclusion as to whether he had a well-founded fear.

3                     The Court understands the concern A expresses in relation to his return to Libya.  It is apparent that his claim for asylum has received some support from the National Front for the Salvation of Libya, an organisation which opposes the current Libyan regime.  A claimed before the Tribunal that relatives of his had held prominent positions with that organisation.  It is pertinent to note that the Tribunal recognised something of the sensitivities associated with the support of the National Front for the Salvation of Libya.  The Tribunal said:

“There is no evidence that the Libyan authorities would know that the organisation has provided a letter of support for the applicant and while I accept that there is considerable sensitivity about the organisation within the Libyan government, there is no evidence that the Libyan authorities would follow up individuals named in the organisation’s letters of support.”

4                     It seems to me, however, that the basis of A’s challenge to the decision of the Tribunal does not involve a claim of any error by the primary judge.  It is directed at challenging the conclusion of the Tribunal and seeks to assert what may be fresh evidence in the generally understood sense, as providing a reason for disturbing the Tribunal’s conclusion.

5                     The particular matters which A has mentioned do not seem to me to fall within any ground in the Migration Act 1958 (Cth) which can properly found a successful application for review.  In particular, it does not seem to advance a ground that falls within s 476(1)(g).

6                     It is important that it be understood, particularly by the appellant, that this Court’s function is concerned with the detection and correction of legal error, if there be any, in the judgment at first instance in the Federal Court.  This Court is not able to entertain a challenge to the decision of the Tribunal on any ground that could not have been argued before the Federal Court at first instance.  The grounds which A wishes to put before us are not such grounds, and I cannot therefore see any course open to this Court other than to dismiss the appeal.

7                     I should note, however, that if there is fresh material or further material which impacts on the correctness of the factual decision of the Tribunal as to a well-founded fear of persecution, there may be two avenues open to A to have the question of a protection visa re-agitated.  The first of these flows from s 417 of the Migration Act, and the second from s 48B of the Act.  I do not wish to give A any false hopes that either of those avenues will be of assistance in his case, but those avenues are brought to his attention because they may provide a method of revisiting the question before the Tribunal, with the assistance of further material.

8                     For the reasons I have given, in my opinion no basis has been shown for doubting the correctness of the judgment of Katz J.  The appeal should be dismissed.

MOORE J

9                     I agree with the presiding judge's conclusion that the appeal should be dismissed for the reasons he has given.  I would simply add some additional observations as to why the appeal should be dismissed.  The appellant sought to establish before the Refugee Review Tribunal that he had a well-founded fear of persecution were he to return to Libya.  Part of his case concerned the consequences for him of having attended a lecture given by a lecturer who, on his account, was subsequently arrested by the authorities in Libya.  The Tribunal was, at the very least, sceptical about whether the lecturer had been arrested.  In this appeal the appellant seeks to introduce fresh material going to the circumstances in Libya generally and also to the specific factual issue of whether the lecturer had been arrested.  However, this material is not material that would have been admissible before the trial judge given the limited grounds in s 476 of the Migration Act for challenging a decision of the Tribunal.  In particular the material that the appellant wishes to rely on is not, in my opinion, material that would be admissible in support of the ground in s 476(1)(g).  If the material was not admissible before the trial judge then, in the circumstances of this case, it would necessarily be inadmissible in the appeal.

10                  The decision of the trial judge does not appear to me to be in any way infected by legal error and what the appellant is really seeking to do is challenge the decision of the Tribunal concerning issues of fact.  For the reasons given by the presiding judge supplemented by these reasons, I would dismiss the appeal.

EMMETT J

11                  I agree, but I shall add some remarks of my own.  When the appellant’s attention was drawn to his grounds of appeal, he informed the Court that, because he had no legal advice, he copied verbatim from a notice of appeal given to him by another inmate of the centre where he is presently detained.  It is clear, therefore, that the Court is not being asked to consider the judgment of Katz J on the basis of the grounds contained in the notice of appeal. 

12                  Before Katz J, the appellant was represented although, as appears from his Honour’s reasons, the submissions were, by consent, made in writing.  There has been no complaint made about the way in which the hearing at first instance was conducted.  Katz J rejected the grounds argued before him in a comprehensive judgment which sets out a detailed analysis of relevant principles and applies the principles so analysed to the facts of the present case.  On a careful reading of Katz J’s reasons for judgment, there is nothing which strikes me as being erroneous in any way.

13                  The only matter which was raised before us was that of further evidence.  As my brother, Moore J, has said, that could only be admissible in an application for a review to the Federal Court in order to establish the grounds set out in section 476(1)(g) of the Migration Act 1958 (Cth).  Section 476(1)(g) provides that it is a ground for review that there was no evidence or other material to justify the making of the decision.  That ground is constrained by section 476(4) which provides that the ground in paragraph (g) is not to be taken to have been made out unless:

“(a)     The person who made the decision was required by law to reach that decision only if a particular matter was established and there was no evidence or other material…from which the person could reasonably be satisfied that the matter was established, or

(b)       The person who made the decision based the decision on the existence of particular fact, and that fact did not exist.”

14                  As I understand it, the further evidence that the appellant sought to adduce before us related to the alleged arrest in Libya of an academic, who, it was said by the appellant, delivered a lecture in March 1995 attended by the appellant.  The Tribunal, in its reasons, said that it was not satisfied, on the evidence before it, that the nature and extent of the involvement between two academics mentioned by the appellant, and the appellant and his group, leads to a link between them sufficient to contribute in any significant way to the sustained efforts by the authorities to find the appellant (which he claims had occurred and continued to occur).

15                  The Tribunal expressed doubt as to whether or not the academics had been arrested and detained as the appellant claimed.  In doing so, the Tribunal relied on the apparent absence of any mention of the academics in Amnesty International materials on Libya.  It may be that the material which the appellant now seeks to adduce would demonstrate that there is evidence of arrest and detention of the academics in question.  However, the critical factor is the conclusion of the Tribunal, to which I have just referred, that the nature and extent of the involvement between the academics and the appellant does not lead to a sufficient link between them to suggest that the authorities would have any particular interest in the appellant.

16                  I agree that it is not open to this court to take the additional material into account.  In the absence of any other ground of appeal, I agree with the conclusion of Spender and Moore JJ, that the appeal should be dismissed.  I also endorse the observations made by Spender J, concerning possible alternative courses available to the appellant if the material to which he has referred does in fact suggest that all relevant material might not have been before the Tribunal.

Associate:

Dated:              10 May 1999