NACF v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 951
•9 SEPTEMBER 2003
FEDERAL COURT OF AUSTRALIA
NACF v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 951MIGRATION – appeal from Federal Magistrate – grounds of appeal confined to familiar and meaningless form frequently experienced by court – appeal devoid of merit.
NACF v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 698 OF 2003
CONTI J
9 SEPTEMBER 2003
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 698 OF 2003
BETWEEN:
NACF
APPELLANT
AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGE:
CONTI J
DATE OF ORDER:
9 SEPTEMBER 2003
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. Appeal dismissed.
2. Appellant to 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.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 698 OF 2003
BETWEEN:
NACF
APPELLANT
AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGE:
CONTI J
DATE:
9 SEPTEMBER 2003
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an appeal from the decision of Federal Magistrate Raphael, given on 23 May 2003, whereby his Honour dismissed an application for review purportedly made pursuant to s 39B of the Judiciary Act 1903 (Cth) on 27 August 2002, for review of a decision of the Refugee Review Tribunal.
The notice of appeal filed in the Court on 12 June 2003 comprises what has become a familiar and meaningless standard form of ‘grounds of appeal’, in relation to many proceedings such as the present, reading as follows:
‘The Single judge of the Federal Court In his Honours Judgment delivered on the 23 May 2003 failed to find error of law, jurisdictional error Procedural fairness and relief under Section 39B of the Judiciary Act 1903.
The grounds and relief is very much similar with a recent High Court Judgment – Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 (8 August 2002). Catchwords: Immigration – Refugee – Protection visa – Decision by Minister to refuse application for visa – Review of decision by Refugee Review Tribunal – Obligation of Secretary of Department of Immigration and Multicultural Affairs to give relevant documents to Register of Tribunal for purpose of review – Nature and extent of obligation – Migration Act 1958 (Cth), ss 148(3), 424(1). I did not receive Judgment yet. I will provide more grounds after received Judgment.’
The appellant was informed at the call-over of the inadequacy of the grounds of appeal appearing in his notice of appeal. This appears to have prompted the appellant to file an Amended Notice of Appeal which was in the following terms:
‘GROUNDS
1.A number of errors were occurred by the Tribunal, which was not considered by the Honourable Federal Magistrate.
2.The Tribunal misunderstood the applicant’s claim and the decision by the Tribunal was not reflected the true picture of the claim. Honourable federal Magistrate did not consider this.
3.The Tribunal did not provide the applicant’s an opportunity to comment on the information, which the Tribunal relied on it’s decision. Where the applicant was deprived of receiving natural justice, Honourable Federal Magistrate also did not consider this.
4.S 474 of the Migration Act is ineffective as per the recent two decision of the High Court of Australia. Honourable trial judge did not consider this favour of the applicant.
4.The applicant will face persecution if he returns to his country of Origin, as there is a significant level of violation human rights, this was not considered by Honourable Judge.’
As in the case of the proceedings before Federal Magistrate Raphael, the appellant appeared in person. He informed the Court that he had not provided any written submissions for presentation on the appeal, because he was waiting to obtain some information or documents, which he did not identify, from overseas. He said he would obtain that information or documents, and earn the money to retain counsel on his behalf, if he was allowed an adjournment of this appeal, though he did not specify within what period of time.
The present appeal proceedings are devoid of viable grounds of appeal. The generality thereof reflects the provision of some precedent provided to the applicant, perhaps by a migration agent, which makes no realistic attempt to address the reasons for judgment of Raphael FM. Ground 1 of the amended grounds of appeal does not identify any errors made by the Tribunal. Ground 2 does not indicate in what respect or respects ‘the applicant’s claim was not reflected [in] the true picture of the claim’. Ground 3 does not identify ‘the information…’ referred to, nor indicates whether, and if so what, submission as to deprivation of natural justice was made to Raphael FM. Ground 4 is meaningless, if not incomprehensible. Ground 5 is devoid of any meaningful particularity, as to any material fact or circumstance, or otherwise. As his Honour rightly pointed out, the application for review before him was ‘… simply one of an applicant who, understandably, does not accept the views upon his credibility expressed by the Tribunal below’.
I am satisfied that the appellant has neither raised nor established any grounds for review of the decision of Raphael FM pursuant to s 39B of the Judiciary Act, or otherwise. Counsel for the Minister has summarised in his written submissions the reasons why the appeal must be dismissed, with which I generally agree, and which may be conveniently reproduced verbatim below:
‘5.It is apparent that the Appellant was unsuccessful because of the view the Tribunal took of the facts, in particular its finding that the Appellant was not credible. Such findings are matters of fact for the Tribunal par excellence; Re MIMA; ex parte Durairajasingham (2000) 168 ALR 407 (HCA/McHugh J) at [67]. So long as the Tribunal’s credibility findings were open to it, no error is demonstrated in such conclusions: Kopalapillai v MIMA (1998) 86 FCR 546 (FC) at 558-559; W148/00A v MIMA (2001) 185 ALR 703 (FCA/FC) at [64-69] per Tamberlin and R D Nicholson JJ. The Tribunal’s findings were open for the reasons it gives, including the independent country information to which the Tribunal refers. It is unlikely that a State party is expected to grant refugee status to a person whose account, although plausible and coherent, was inconsistent with the State’s understanding of conditions in his or her country of nationality: Chan v MIEA (1989) 169 CLR 379 at 428 per McHugh J (although here the Tribunal as not found the Appellant’s claims to be “plausible and coherent”).
6.Before Raphael F M the appellant did not identify any jurisdictional error in the Tribunal’s decision, and appeared to seek merits review. However there is no error of law in making a wrong finding of fact: Abebe v Commonwealth (1999) 197 CLR 510 at [137], and the Court cannot review the merits of the Tribunal’s decision: MIEA v Wu Shan Liang (1996) 185 CLR 259 at 272. His Honour concluded that the Tribunal’s conclusions as to the Appellant’s credit were open to it and that there was no jurisdictional error in the Tribunal’s decision.
7.The Amended Notice of Appeal does not properly particularise any error in His Honour’s decision. There is no error in His Honour’s decision.
8.As there is no arguable jurisdictional error in the Tribunal’s decision, it is strictly unnecessary to discuss the effect of s 474 of the Migration Act 1958 or Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24. However the distinction between jurisdictional and non-jurisdictional errors remains: Linett v McIntyre (2002) 117 FCR 189 (FC) at [5], [30-35], [86-87]; Re MIMIA; Ex parte Lam (2003) 195 ALR 502 at [77]; Re MIMIA; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [59]. The Tribunal was plainly addressing the right question, and the Appellant’s complaints can at most concern the weight given to evidence before it, which cannot be a jurisdictional error: Linett.’
The appeal is utterly without merit and is dismissed. The appellant must pay the Minister’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 Justice Conti. Associate:
Dated: 9 September 2003
Counsel for the Applicant: In person Counsel for the Respondent: T Reilly Solicitor for the Respondent: Sparke Helmore Date of Hearing: 8 September 2003 Date of Judgment: 9 September 2003
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