NALC v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 78

FEDERAL COURT OF AUSTRALIA

NALC v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCA 78

NALC v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 1570 of 2004

WILCOX J
3 FEBRUARY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1570 of 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	NALC APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	3 FEBRUARY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.The appellant pay the costs of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs.

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 1570 of 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	WILCOX J
DATE:	3 FEBRUARY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

1. I have read the reasons for judgment given by Driver FM in this matter.   His Honour had the advantage of hearing submissions from counsel for the appellant before reaching the conclusion that no jurisdictional error had been shown, in relation to the Tribunal's decision to affirm a refusal of a protection visa to the present appellant and her husband and son.

2. Today I have engaged in a full discussion with both the appellant and her migration agent about the Tribunal's reasoning.  I totally understand they are unhappy about the conclusions reached by the Tribunal; in particular, in relation to the place of residence of the appellant between early 1996 and her departure from Russia for Australia late in 1998.  The situation facing the Tribunal in relation to that issue was complicated by documents that appear, on their face, to be contradictory. 

3. I am not persuaded that the Tribunal’s conclusion demonstrated jurisdictional error.  I would not even say it was an illogical conclusion.

4. The Tribunal had to make a judgment based on the oral evidence that had been given, including an explanation of the documents.  That evidence had to be considered in the light of country information, which was discussed with the appellant and her legal adviser at the time of the Tribunal's hearing. 

5. It is not this Court's function to determine whether the Tribunal's findings of fact are correct or otherwise.  I do not intend to indicate any concluded view about that matter.  I simply say I have been unable to discern any jurisdictional error in the decision of the Tribunal. Consequently, the Magistrate was correct in rejecting the application for judicial review.  The Magistrate's reasons were comprehensive and carefully considered, and I have no reason to differ from the views he expressed. 

6. Although I have much sympathy for the position in which the applicant finds herself, I have no alternative other than to dismiss the appeal.  The usual order for costs should be made.  The appeal will be dismissed with costs.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated:            22 February 2005

The Appellant appeared in person
Counsel for the Respondent:	Ms K Morgan
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	3 February 2005
Date of Judgment:	3 February 2005