NAEP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 417 (25 November 2002)

Last Updated: 7 January 2003

FEDERAL COURT OF AUSTRALIA

NAEP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 417

APPLICANT NAEP of 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 594 of 2002

WHITLAM, FINN and DOWNES JJ

25 NOVEMBER 2002

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 594 of 2002

BETWEEN:	APPLICANT NAEP of 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	WHITLAM, FINN and DOWNES JJ
DATE OF ORDER:	25 NOVEMBER 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal is dismissed.

2. The appellant is to pay the respondent's costs of the appeal.

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 594 of 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	APPLICANT NAEP of 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	WHITLAM, FINN and DOWNES JJ
DATE:	25 NOVEMBER 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WHITLAM J

1 This is an appeal from a judgment of Lindgren J ([2002] FCA 694) given on 3 June 2002. The appellant has the misfortune to be acting for himself. However, he was represented before the primary judge. I have considered whether there is some latent error that was not argued in the court below before his Honour and should have been. However, there is no such point. All the grounds agitated before the primary judge were dealt with in his judgment. Having listened carefully to everything the appellant has had to say today, in my opinion, no error is revealed on the part of the primary judge.

2 Accordingly the appeal should be dismissed with costs for the reasons given by the primary judge.

I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.

Associate:

Dated: 10 December 2002

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 594 of 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	APPLICANT NAEP of 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	WHITLAM, FINN and DOWNES JJ
DATE:	25 NOVEMBER 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

FINN J

3 I agree. I do not consider that any appealable error in his Honour's reasons has been shown. The appellant has sought to re-agitate fact findings made by the Tribunal. It is the case that there may well have been errors of fact. The appellant points, for example, to an indication in the Tribunal's reasons that he suffered a head injury at a period far earlier than when the injury was in fact sustained. It is clear when the matter was dealt with before his Honour that that error was inoperative, the date being attributed to it being the correct date which was 15 July.

4 Equally, insofar as the issue of translation of a document relating to his discharge from the armed forces was concerned, the challenge made before the Tribunal that this revealed he had been in prison was not accepted because the Tribunal dismissed the claim on grounds of credibility. When the matter was considered by the primary judge a quite different issue had been raised and that was dealt with in my view unexceptionably by his Honour.

5 Finally, I do not think there is any substance in the suggestion that the Tribunal's indication that it had difficulty in immediately understanding what the applicant was saying was in any way indicative of a lack of good faith such as might open up a challenge under the Hickman principles. Accordingly, I would dismiss the appeal.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

Associate:

Dated: 10 December 2002

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 594 of 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	APPLICANT NAEP of 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	WHITLAM, FINN and DOWNES JJ
DATE:	25 NOVEMBER 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

DOWNES J

6 I agree with the reasons of both Whitlam and Finn JJ. The appellant did make some effort to suggest that the decision of the Tribunal was not given in good faith. In doing so he was recognising, I apprehend, that the legislation which governs this appeal contains a "privative clause" in s 474 of the Migration Act 1958 (Cth) and limits, very dramatically, the circumstances in which this Court can interfere. However, it seems to me that neither of the matters, both of which have been covered by Finn J, upon which the appellant relied in his effort to suggest that there may have been some lack of good faith in the decision-making of the Tribunal make out such a claim or anything like such a claim. I accordingly agree that the appeal should be dismissed with costs.

I certify that the preceding one (1) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Downes.

Associate:

Dated: 10 December 2002

The appellant appeared in person.

Counsel for the respondent:	J D White
Solicitors for the respondent:	Sparke Helmore
Date of hearing:	25 November 2002
Date of judgment:	25 November 2002