FEDERAL COURT OF AUSTRALIA

Gedik v Minister for Immigration & Multicultural Affairs

 [1999] FCA 1815  

GAZI GEDIK V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 632 of 1999

WHITLAM, RD NICHOLSON, GYLES JJ

12 NOVEMBER 1999

SYDNEY

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.

REASONS FOR JUDGMENT

Whitlam J

1                     This is an appeal from an order of a Judge of the Court dismissing with costs an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”) given on 5 January 1999.  The amended notice of appeal, filed by leave in Court today, raises several grounds, some of which have now been abandoned.  The first amongst those was a ground that seemed to impute bias, perhaps actual bias, to the primary judge.  For my own part, the abandonment of that ground has made the disposition of the appeal much easier.

2                     Counsel for the appellant has canvassed the volume of material that was before the Tribunal and the primary judge.  He challenges the Tribunal's decision by reference to the ground available under s 476(1)(e) of the Migration Act 1958.  The basis on which the appellant seeks to challenge the Tribunal's decision repeats, in my view, the submissions that were made on his behalf and fully developed before the primary judge.  Ultimately, however, those submissions involved, in my view, an attack on the fact finding by the Tribunal.

3                     I do not find it necessary to repeat in any part the summary of the findings made by the Tribunal, which are set out in the primary judge's reasons for judgment, and I would not wish to add anything to what His Honour said about the appellant’s submissions, insofar as those submissions have been re-agitated before the Court today.  Accordingly, for the reasons given by the primary judge, the appeal must be dismissed.

RD Nicholson J

4                     I am of the same opinion and I would merely add these comments.  Firstly, as to the passport issue, I am satisfied that there was evidence on which the primary judge was entitled to find that the Tribunal in turn had been entitled to the conclusion which it came.  Whether or not that was the only inference open to the Tribunal, as has been expressed in some of the reasons, is not to the point.  The fact is that there was evidence entitling the primary judge to uphold the finding made.  It was significant finding because it went to issues of credibility and to other matters in contention.  In my view, the view of the primary judge was correct.

5                     In relation to the second way in which the grounds are put on the appeal, that is that the Tribunal failed to consider matters before it because it confined consideration of some of them to the question of political activities and failed to consider them in relation to the claims based on religious status and ethnicity, I consider that the findings of the Tribunal made at p. 203 - 204 of its reasons, are findings that show the Tribunal addressed those material questions of fact, namely the claims arising from those grounds. 

6                     The way in which the arguments in the appellant’s case were put has invited the Court to impermissibly engage in reworking through the views taken by the Tribunal and upheld by the primary judge and thus to engage in merits review.  Both the Parliamentary recasting of the jurisdiction of this Court in terms of s 476 of the Migration Act 1958 (Cth) as well as the decisions of the High Court in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577 and other matters and the decision of the Full Court in Epeabaka v Minister of Immigration and Multicultural Affairs [1997] FCA 1413 make it clear that this Full Court cannot involve itself in the reasoning of Tribunals in the absence of error of law coming within the limited classes of error of law which are now permissibly reviewable in this jurisdiction.

7                     I therefore agree with the presiding judge that the reasons of the primary judge are not in error and I would join in dismissing the appeal.

Gyles J

8                     I agree with each of their Honours.  The only thing I would add is this.  My consideration of the particulars of the grounds of the amended application for review which was before the primary judge shows that those grounds were virtually doomed to failure once the considerations to which RD Nicholson J has just referred are fully appreciated.  I can understand how this occurred because the original application was filed at a time when Minister for Immigration & Multicultural Affairs v Epeabaka (1998) 84 FCR 411 was probably not widely known.  That decision had then only just been given and the decisions of the High Court in Abebe v Commonwealth (1999) 162 ALR 1 and then Minister for Immigration & Multicultural Affairs v Eshetu (1999) 162 ALR 577 had not been delivered.

9                     It seems to me, with respect, that the crucial effect of those decisions upon the approach of the Court to the application of s  476 of the Migration Act 1958 (Cth) may not have been fully appreciated at the time these proceedings were commenced.  This seems to have been reflected in the grounds taken and, I might say, in the grounds now argued.

Associate:

Dated:              22 November 1999