NAOF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCAFC 107

FEDERAL COURT OF AUSTRALIA

NAOF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 107

NAOF of 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 1162 OF 2002

MOORE, MANSFIELD & STONE JJ
15 MAY 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1162 OF 2002

BETWEEN:	NAOF of 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	MOORE, MANSFIELD & STONE JJ
DATE OF ORDER:	15 MAY 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal is dismissed with 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	N 1162 OF 2002

BETWEEN:	NAOF of 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	MOORE, MANSFIELD & STONE JJ
DATE:	15 MAY 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:

1. This is an appeal from a judgment of a Judge of this Court of 11 December 2002.  The primary judge dismissed an application for judicial review of a decision of the Refugee Review Tribunal.  The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs to refuse to grant the appellant a sub class 866 protection (class XA) visa under the Migration Act 1958 (Cth) (“the Act”). The appeal was listed for hearing today. The appellant has not appeared. The Minister has invited us to determine the appeal on the merits in the appellant's absence as provided by O 52 r 38A of the Federal Court Rules. We propose to do so.

2. The background and facts are sufficiently revealed in the Tribunal's decision and the reasons for judgment of the primary judge. The appellant was unrepresented before the primary judge. Her application did not identify the statutory provisions under which the application was maintained. However, the primary judge indicated he proposed to treat the application as though it sought to invoke the provisions of Part 8 of the Act and s 39B of the Judiciary Act 1903 (Cth).

3. The primary judge noted that to the extent that grounds of review are identified, they were found in the appellant's supporting affidavit.  His Honour observed, however, that in substance the appellant sought to challenge the factual findings of the Tribunal.  She sought a merits review.  His Honour noted that the Tribunal had not believed most of what the appellant had said.  His Honour considered it was unnecessary to address the effect of the privative clause.  He dismissed the application with costs.

4. In a notice of the appeal, the appellant simply alleged the primary judge did not consider the points she had raised in her affidavit and had not considered what she had said about relocation.  The appellant is a national of India and relocation was a matter addressed by the Tribunal on the assumption that the appellant's claims were true (though it had rejected them).  The Tribunal concluded the appellant could relocate within India.

5. The notice of appeal has identified no arguable error on the part of either the Tribunal or the primary judge.  As the primary judge observed, the appellant has sought in this Court, merits review of the Tribunal's decision.  The appeal should be dismissed with costs.  We so order.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Moore, Mansfield & Stone.

Associate:

Dated:             28 May 2003

There was no appearance by the appellant.
Counsel for the respondent:	Mr D Jordan
Solicitor for the respondent:	Australian Government Solicitor
Date of Hearing:	15 May 2003
Date of Judgment:	15 May 2003