NACD v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 1373

FEDERAL COURT OF AUSTRALIA

NACD v Minister for Immigration & Multicultural & Indigenous Affairs
[2002] FCA 1373

NACD v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N951 of 2002

WILCOX J
1 NOVEMBER 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N951 of 2002

BETWEEN:	NACD APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	1 NOVEMBER 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The appellant pay the costs of the respondent.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N951 of 2002

BETWEEN:	NACD APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	WILCOX J
DATE:	1 NOVEMBER 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

1. This is an appeal against a decision of Raphael FM in the Federal Magistrates Court of Australia.  The Magistrate's decision was given on 30 August 2002. 

2. The Chief Justice of this Court directed that the appeal be heard by a single judge.  Accordingly, I am exercising the appellate jurisdiction of the Court in respect of the matter.

3. At the commencement of the hearing today, the appellant (who represented himself with the aid of an interpreter) told me he wanted time to obtain legal advice.  During the course of discussion, he agreed he had received legal advice, pursuant to the pilot scheme operated by the Court with the assistance of the Bar Association of New South Wales and the Law Society of New South Wales.  The lawyer assigned to him under the scheme was Mr Wilson of counsel.  Apparently Mr Wilson gave him advice in conference, some time before the date (6 June 2002) on which the original application, then before this Court, was transferred by Beaumont J to the Federal Magistrates Court.  In other words, the advice was given some five months before today.

4. In view of that fact, I see no merit in the application for an adjournment of this appeal in order to allow the appellant an opportunity for legal advice.  If he was not satisfied with the advice given by Mr Wilson, he has had ample opportunity to obtain advice from another source. 

5. When the matter came before me for directions on 15 October 2002, I explained to the appellant that this Court, like the Federal Magistrates Court, had no power to review the Tribunal’s findings of fact.  He said he understood that.

6. The ambit of review available to this Court is narrowly confined.  It is limited to certain grounds of law and procedure.  The appellant put no submission that raised any legal ground; the only submission he put to the Court was to say that the story he gave to the Tribunal should not have been rejected.  He complained, specifically, that certain documents that he tendered to the Tribunal were not accepted as genuine.  It will be apparent that these matters are not within the purview of the Court. 

7. It appears from the reasons for judgment of Raphael FM that a similar position obtained at the hearing before him.  Raphael FM summarised the claims made by the appellant before the Tribunal and the Tribunal’s findings about them.  He then said, in para 19 of his reasons:

   “What the applicant is seeking that I do is to substitute my interpretation of the evidence which he has presented to that of the Tribunal.  He is not pointing to a failure by the Tribunal to reach those decisions by virtue of a failing falling within one the [grounds available to an applicant under s 39B of the Judiciary Act 1903].””

   Raphael FM added that, even if this was wrong, there was no error which was available, having regard to the decision to the Full Court of this Court in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228.

8. It seems to me Mr Raphael’s view is clearly correct.  The appropriate order is that the appeal be dismissed with costs.  I so order.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:  
Dated:   1 November 2002

The appellant appeared in person.
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	1 November 2002