NADC v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT THE COURT: 1 This is an appeal from a decision of Hill J, dismissing 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 to grant a protection visa to the appellant. The relevant facts and the grounds on which the appellant sought review of the Tribunal's decision are set out in the reasons of the trial judge: see NADC v Minister for Immigration and Multicultural Affairs [2003] FCA 201. (Those reasons may be found on the Federal Court's website: www.fedcourt.gov.au.) 2 The notice of appeal filed by the appellant lists two grounds of appeal: "Federal Court did not consider procedural fairness and natural justice issue made by the RRT. Federal Court did not consider any error of law made by the RRT." 3 The appellant filed written submissions in support of his appeal. The submissions raise three points: that the primary judge ordered a transcript of the tape of the hearing before the Tribunal and that the respondent failed to provide it and that consequently there was procedural unfairness; that the primary judge incorrectly stated that the appellant delayed in providing documents to the Tribunal; and that the Tribunal did not observe correct procedures, made its decision without investigating the appellant's supporting documents and did not consider the "Part B documents". This final point appears to be an attempt to bring the appellant's case within the reasoning of the majority of the High Court in Muin v Refugee Review Tribunal (2002) 190 ALR 601 ("Muin"), an attempt made before the primary judge and rejected by his Honour. The remainder of the appellant's lengthy written submissions relate to the facts of his case. 4 The first point raised by the appellant appears to result from a misunderstanding of the learned primary judge's reasons. His Honour did consider making orders to obtain a transcript of the hearing before the Tribunal, to ascertain whether the Tribunal raised the issue of the authenticity of the two categories of documents provided by the appellant but he decided that it was unnecessary to do so. This was because his Honour concluded that any failure of natural justice that might have occurred if the Tribunal had failed to alert the appellant that it might regard documents he produced as forgeries could not have affected the outcome of the proceedings having regard to alternative findings that the Tribunal made. (We should note here that the Tribunal's alternative findings could stand alone, in the sense that they were of their nature quite separate from, and uninfected by, any unfairness that might have been involved in its treatment of the documents as forgeries.) 5 The second point also appears to be based upon a misunderstanding of his Honour's reasons. His Honour was referring to documents produced by the appellant's solicitor at the hearing before the Tribunal which had not been produced earlier, whilst not attaching any significance to the production of the documents at that stage (see [7] of his Honour's reasons). 6 The final point raised by the appellant's submissions is a challenge to the Tribunal's decision on the basis of the majority of the High Court's reasoning in Muin. This was raised before the primary judge and rejected. There is no material before us establishing the requisite facts for such a submission to succeed, or which would cast any doubt upon the correctness of his Honour's reasons. 7 The factual matters raised by the appellant in his written submissions cannot be reviewed on appeal. Section 476 of Migration Act 1958 (Cth) provides that an applicant may apply for judicial review on limited grounds of a legal nature, not factual error. As a general proposition the Court does not have jurisdiction to review on factual grounds. 8 The appeal must be dismissed with costs. The appellant must pay the respondent's costs of the appeal. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Black, their Honours Justice Heerey and Justice Finn.