NAEH v Minister for Immigration & Multicultural & Indigenous Affairs

THE COURT: 1 This is an appeal from a decision of Moore J, 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 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 NAEH v Minister for Immigration and Multicultural Affairs [2003] FCA 186. (Those reasons may be found on the Federal Court's website: www.fedcourt.gov.au.) 2 The notice of appeal lists two grounds of appeal, which assert that the primary judge "failed to find error of law, Jurisdictional error Procedural fairness and relief under Section 39B of the Judiciary Act 1903". The second suggests that what the appellant is really complaining about is an error "very much similar with [that found by a majority in] a recent High Court Judgment - Muin v Refugee Review Tribunal". 3 The appellant was directed to file written submissions, in support of the appeal, 14 days prior to the hearing. He has not done so. In oral submission he claimed that "the RRT misled me." This apparently related to the Tribunal asking him what he considered to be irrelevant questions. This matter was not raised before Moore J. It does not disclose a ground of appeal to this Court. 4 No challenge to the Tribunal's decision on the basis of the majority of the High Court's reasoning in Muin v Refugee Review Tribunal (2002) 190 ALR 601 ("Muin") appears to have been made before the primary judge and it could not succeed without the appellant establishing disputed matters of fact concerning the proceedings before the Tribunal. There is, however, no basis upon which the court should now depart from the ordinary rule that prevents factual matters of this nature being raised for the first time on appeal. 5 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. 6 We have read the reasons of the learned primary judge. His Honour carefully considered the arguments that were said to give rise to jurisdictional error. His Honour concluded that they did not make out any legal error and that there was no basis for him to interfere with the decision of the Tribunal. There is nothing before us to cast any doubt upon the correctness of his Honour's reasons. 7 The appeal must be dismissed with costs. The appellant must pay the respondent's costs of the appeal. I certify that the preceding seven (7) 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.