NACM v Minister for Immigration & Multicultural & Indigenous

[2006] FCA 263

FEDERAL COURT OF AUSTRALIA

NACM v Minister for Immigration & Multicultural & Indigenous
Affairs [2006] FCA 263

MIGRATION – unsuccessful appeal from Federal Magistrate – no error of law exposed. 

Migration Act 1958 (Cth) s 474

Minister for Immigration and Ethnic Affairs v Wu Shan Ling (1996) 185 CLR 259
Abebe v The Commonwealth (1999) 197 CLR 510

NACM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 2122 OF 2005

CONTI J
20 MARCH 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2122 OF 2005

BETWEEN:	NACM APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	CONTI J
DATE OF ORDER:	20 MARCH 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        Appeal dismissed.

2.        Appellant to pay the respondent Minister’s costs.

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	NSD 2122 OF 2005

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

JUDGE:	CONTI J
DATE:	20 MARCH 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from the whole of the judgment of Nicholls FM given and published on 24 October 2005, whereby his Honour dismissed an application for review of the decision of the Refugee Review Tribunal delivered on 2 August 2004, which in turn affirmed the decision of the Minister’s delegate made on 21 January 2000 to refuse a protection visa to the appellant.

2. The appellant had applied for a protection visa as long ago as 30 December 1999.  An earlier dismissal by the Tribunal on 11 October 2001 of a review application was set aside by Madgwick J of this Court on 22 December 2003.  However by its further decision handed down on 2 August 2004, the Tribunal again affirmed the delegate’s decision of 21 January 2000.  The appellant sought a review of the Tribunal’s decision in the Federal Magistrates Court, however the decision of Nicholls FM made on 24 October 2005 was once more unfavourable to the appellant.

3. The appellant’s claims as to fear of persecution made to the Tribunal related to his circumstances in Georgia said to involve and to result from his ethnicity and political opinion.  He recounted to having been imprisoned on false charges by reason of having actively opposed the Georgian government’s sale of military arms to Chechen rebels in the Russia – Chechnya war.  The appellant further recounted that on the way to a planned meeting with the then President Shevardnadze, he was arrested and charged with conspiracy to overthrow the government, being charges which were subsequently withdrawn.  He further claimed however that thereafter he was falsely charged with robbery.  Having been held in gaol, he testified to sexual abuse which was said to have caused a critical decline in his health.  Yet despite being transferred to hospital, he recorded that he was sentenced early in 1997 to three years’ jail, that being asserted by him to be well in excess of the terms of imprisonment the subject of sentences received by his ‘accomplices’.

4. The political circumstances attending those events were further said by the appellant to have caused restrictions on his release from jail, involving house arrest and leading to his divorce.  Following the disastrous results sustained by the People’s Party in the ensuing election in Georgia, the appellant claimed to have been left with no one to defend or support him.  After experiencing ongoing difficulty in obtaining a passport, the appellant finally departed Georgia in November 1999, his passport being said to have been back-dated in order to allow him to pass through any computer check.

5. At the hearing of the proceedings, the appellant presented as an earnest person with forceful views as to the circumstances prevailing in Georgia and the justification for his departure.  He had difficulty in appreciating the limitations upon the foundation and scope of his entitlement to appeal, limited as it is essentially to issues of law.  As almost inevitably occurs in migration appeals to this Court undertaken by unrepresented litigants, the appellant had no adequate or real appreciation of the limited scope of appeal from decisions of Federal Magistrates.  He indicated his enlistment of legal assistance for the preparation of his unsigned written submissions from an otherwise unidentified source, but maintained an inadequate understanding of the legitimate parameters available to him as to any realistic prospect of a successful appeal.

6. The unsigned written submissions of the appellant’s unidentified author of his written submissions failed to demonstrate any viable basis for the appeal.

7. As rightly submitted by counsel for the Minister, it is apparent that the appellant was unsuccessful in the Tribunal because of the view the Tribunal took of the facts, and in particular because of its finding that the appellant’s claims were untrue and in some aspects fabricated.  Findings of fact are of course essentially matters for the Tribunal to resolve and determine.  The Tribunal’s findings were open to be made for the reasons it gave, including the country information to which it referred.  As I stressed to the appellant in the course of his address, the Court is not entitled as a general rule to review the merits of the Tribunal’s decision‑making as such (Minister for Immigration and Ethnic Affairs v Wu Shan Ling (1996) 185 CLR 259 at 272). There is no error of law, let alone any jurisdictional error, involved in the Tribunal making a wrong finding of fact, assuming of course the making of any such wrongful finding being established (Abebe v The Commonwealth (1999) 197 CLR 510 at [137]).

8. Before the Federal Magistrate, the appellant relied upon an application which claimed, without particularity, that the Tribunal erred in law and denied the appellant procedural fairness, and which in any event the appellant did not establish. Moreover the appellant filed with the Court submissions which his Honour comprehensively addressed at [5]-[10] of her reasons, concluding that no error was demonstrated in the Tribunal’s decision, and that case related in any event to a privative clause decision within s 474 of the Migration Act 1958 (Cth).

9. The appeal must inevitably be dismissed with costs.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate:

Dated:             20 March 2006

The Appellant was self-represented
Counsel for the Respondent:	T Reilly
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	16 March 2006
Date of Judgment:	20 March 2006