NAFW v Minister for Immigration & Multicultural & Indigenous Affairs

THE COURT: 1 This is an appeal from a decision of Wilcox 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 applications for protection visas by the appellant and her husband. The appellant's husband is not a party to the appeal, and was not a party to the application before the primary judge. 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 NAFW v Minister for Immigration and Multicultural Affairs [2003] FCA 311. (Those reasons can be found on the Federal Court's website: www.fedcourt.gov.au.) 2 The notice of appeal lists two grounds of appeal. The first asserts that the primary judge "failed to find error of law, Jurisdictional error Procedural fairness and relief under Section 39 B 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 filed written submissions which attempt to make out a case of the same general nature as that considered in Muin v Refugee Review Tribunal (2002) 190 ALR 601 ("Muin"). She asserts that there was a lack of procedural fairness because the Tribunal did not read all the materials supportive of her claim. 4 No such challenge to the Tribunal's decision 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 Moreover, as counsel for the respondent points out in his written submissions, in Muin, a majority of the High Court inferred that, although the Tribunal represented that it had considered all relevant material, it had not in fact considered the "Part B documents" (see Gaudron J at 617, Kirby J at 646, Hayne J at 660 and Callinan J at 671). But in the present case the only relevant material before the Court is the Tribunal's reasons, which assert that it did have regard to all the material referred to by the delegate (see page 4 of the Tribunal's reasons). In Muin it was agreed between the parties that the plaintiff had been misled as to whether the Tribunal had considered the "Part B documents" and that, had the plaintiff known the true situation, he would have taken specific action to bring certain matters to the Tribunal's attention (see Gaudron J at 617-618, Hayne J at 659 and Callinan J at 671). There is no such agreement in the present case. 6 The appeal must be dismissed with costs.