NAXA v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCAFC 229

FEDERAL COURT OF AUSTRALIA

NAXA v Minister for Immigration and Multicultural and Indigenous Affairs
[2004] FCAFC 229

NAXA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 225 of 2004

WILCOX, EMMETT and DOWNES JJ
16 AUGUST 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 225 of 2004

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	NAXA APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	WILCOX, EMMETT and DOWNES JJ
DATE OF ORDER:	16 AUGUST 2004
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	N 225 of 2004

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

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

JUDGES:	WILCOX, EMMETT and DOWNES JJ
DATE:	16 AUGUST 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:

1. This is an appeal from a decision given by Whitlam J on 10 February 2004, dismissing with costs an application for review of a decision of the Refugee Review Tribunal (‘the Tribunal’). 

2. The appellant is a Chinese national who sought a protection visa on the basis of his political opinion.  It is not necessary for us to summarise the claims made by the appellant.  They are set out in the reasons for decision of the Tribunal.

3. The task of the Tribunal was made more difficult by the fact that the appellant did not attend the Tribunal hearing.  The appellant has told us today that the reason for his failure to attend was that his migration agent did not notify him of the date.  It is not necessary or appropriate for the Court to examine that issue.  No complaint is made against the Tribunal in relation to its decision to proceed with the hearing and make a decision without attendance by the appellant.

4. The appellant appeared in person today assisted by an interpreter.  He made some observations to us about the situation in China today, about the Tribunal's understanding of that situation and about his likely fate if he were returned to China.  We understand what he has said to us.  However, as we have pointed out to the appellant more than once, the Court cannot review the Tribunal's findings of fact. 

5. The Court can only intervene if it is satisfied that the Tribunal fell into jurisdictional error.  We endeavoured to explain to the appellant the meaning of that term.  We asked the appellant to direct our attention to any claimed jurisdictional error in the Tribunal’s reasons but he indicated he could not do this. 

6. It is apparent from the reasons of Whitlam J that he read the Tribunal's decision but was unable to discern any jurisdictional error.   We have each read the Tribunal's decision.  We also cannot see any arguable jurisdictional error.

7. In the circumstances, the appropriate order is that the appeal be dismissed with costs.  We so order.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Wilcox, Emmett and Downes.

Associate:

Dated:            26 August 2004

The Appellant appeared in person.
Counsel for the Respondent:	Mr J D Smith
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	16 August 2004
Date of Judgment:	16 August 2004