NAOL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 162 (27 February 2003)

Last Updated: 10 March 2003

FEDERAL COURT OF AUSTRALIA

NAOL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 162

NAOL v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 1250 of 2002

WILCOX J

27 FEBRUARY 2003

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1250 of 2002

BETWEEN:	NAOL APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	27 FEBRUARY 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the costs of the respondent, 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 WALESDISTRICT REGISTRY	N 1250 of 2002

BETWEEN:	NAOL APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WILCOX J
DATE:	27 FEBRUARY 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

1 This is an appeal against a decision of Federal Magistrate Driver dismissing an application to review a decision of the Refugee Review Tribunal. The Chief Justice of this Court has directed that the appeal from the magistrate's decision be heard by a single judge. Consequently, in dealing with the matter, I am exercising the jurisdiction of the Court.

2 When the case was before the magistrate, the appellant was represented by a solicitor. The solicitor put a number of submissions to the magistrate. They were each rejected. They were not repeated before me. Nonetheless, as the appellant is unrepresented before me, I have considered the points argued before the magistrate. It seems to me he was correct in the view he took concerning each of them.

3 The magistrate's decision was given before the recent decision of the High Court of Australia in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2. The effect of that decision was to establish that the grounds available to applicants for curial review were somewhat wider than had been generally thought at the time of the magistrate's decision in this case. I have taken that change into account in considering whether the arguments that were put to the magistrate by the appellant's then solicitor should now be regarded as having merit, in the sense of providing an available ground of review. However, even approaching the matter in that way, I think the grounds that were advanced to the magistrate had to be rejected and ought now to be regarded as properly rejected.

4 At the hearing before me today the appellant was assisted by an interpreter, Mr Matin Abbas. I am grateful for his assistance. I endeavoured to explain to the appellant the grounds of review that were available to him. I did this by reference to the situation, as I understand it, under s 39B of the Judiciary Act 1903 and applying the approach of the High Court in Plaintiff S157. The appellant did not put any submission to me that was based upon any of those grounds.

5 The appellant drew my attention to three documents that were before the Tribunal, are reproduced in the papers that were before the magistrate and are now before the Court. The appellant felt that these documents gave corroboration to his account of events in Pakistan. However, the difficulty in the submission is that the Tribunal was not satisfied of the genuineness of these documents. In her reasons for decision, the Tribunal member gave reasons for her conclusion about lack of genuineness. It is not open to the Court to review that conclusion. It is entirely a matter of fact. Accordingly, I do not express any view upon the question whether the documents should, or should not, have been regarded as genuine. I have to take the facts as found by the Tribunal; on that basis, it must obviously be concluded that the documents do not corroborate the appellant's evidence.

6 It is perhaps worth pointing out that the Tribunal member mentioned that, even if she was wrong in her view about the documents bearing the date April 1993, the documents themselves indicate that the appellant was found innocent of the charges which he says were then brought against him; accordingly, he has no outstanding charges to answer. The Tribunal member said she was, therefore, satisfied that the appellant does not have a genuine fear of being arrested and gaoled by the authorities should he return to Pakistan.

7 The other documents are dated May 1998. At that time, according to the appellant, he was involved in an altercation with members of a rival religious group and he sustained some injuries. The documents purport to provide corroboration of this. As I have said, the Tribunal did not accept the genuineness of the documents and the Tribunal was not satisfied that an incident of the nature described by the appellant had in fact occurred. Once again, this was a finding of fact.

8 I understand the difficulty that the appellant has in presenting his appeal, and bringing his case within the grounds that are available in the Court; but, as I explained to him, I am myself bound by the limitations governing the conduct of the appeal contained in the Migration Act 1958. As no available ground of appeal has been pointed to, I have no option other than to dismiss the appeal. The appeal will be dismissed with costs.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated: 27 February 2003

The appellant appeared in person
Counsel for the Respondent:	Ms M Allars
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	27 February 2003