NAPS v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 249 (18 August 2004)

Last Updated: 3 September 2004

FEDERAL COURT OF AUSTRALIA

NAPS v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 249

MIGRATION: no issue of principle

































NAPS V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N432 OF 2004

NORTH, DOWSETT & CONTI JJ
18 AUGUST 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N432 OF 2004

On Appeal from a Judge of the Federal Court of Australia

BETWEEN:	NAPS APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	NORTH, DOWSETT AND CONTI JJ
DATE OF ORDER:	18 AUGUST 2004
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.
3. To the extent necessary, leave to appeal from the order dismissing the notice of motion filed 9 October 2003 is refused.

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	N432 OF 2004

On Appeal from a Judge of the Federal Court of Australia

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

JUDGES:	NORTH, DOWSETT AND CONTI JJ
DATE:	18 AUGUST 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:

1 This is an appeal from a judgment of Allsop J delivered on 5 March 2004. His Honour dismissed an application for a review of a decision of the Refugee Review Tribunal which affirmed a decision of a delegate of the respondent to refuse the appellant a protection visa. The appellant is a citizen of Sri Lanka who claimed a fear of persecution as a result of political activities in support of the UNP. The background and his claims are set out in both the decision of the Tribunal and the judgment of the primary judge and need not be repeated in these reasons.

2 The limited grounds of appeal set out in the amended notice of appeal have been overtaken by two written submissions filed by the appellant, one on 11 August 2004 and one on 18 August 2004, and by short oral submissions addressed by the appellant to the Court. The appellant is self-represented and the submissions are not directed to distilling the legal significance of the matter related. We have, however, done our best to identify those matters, and address them as follows.

3 In our view the submissions, both written and oral, do not make out any error on the part of the primary judge or any jurisdictional error made by the Tribunal. Much of the submissions are expressly concerned to seek another chance for a hearing before the Tribunal to mend any defects in the case as it was conducted before the Tribunal. This appeal Court has no power to provide the appellant with such an opportunity in the absence of some identified jurisdictional error.

4 Other parts of the submissions take issue with the fact findings of the Tribunal, including the Tribunal's use of the country information, and argue for a different result on the merits of the application. This Court is engaged in an appeal in a judicial review application and has no jurisdiction to canvass the merits of the decision of the Tribunal.

5 Then, the appellant in his submissions referred to a desire to rely on further evidence, which was not before the Tribunal. In our view there are no grounds made out to support such an application.

6 The appellant also contended that the interpretation before the Tribunal was inadequate and, if corrected, would result in the Tribunal coming to a different view. The primary judge dealt in great detail with this argument and with each specific example of the alleged failure at interpretation. He rejected the criticisms on a number of different grounds. We agree with his conclusions. As a result of the primary judge's conclusion on this issue his Honour dismissed the notice of motion, which was filed on 9 October 2003, and which sought the appointment of an independent expert for the purposes of resolving the criticisms of the interpretation. For the reasons given by the primary judge he was correct to dismiss the motion, and to the extent necessary, leave to appeal from that decision is refused.

7 Finally, the appellant complained that the Tribunal failed to give him the opportunity to comment on the line of reasoning which it proposed to adopt. It was not obliged to do so. It follows from these reasons that the appeal must be dismissed with costs.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Court.

Associate:

Dated: 3 September 2004

Counsel for the Appellant:	Self represented
Counsel for the Respondent:	Ms M Allars
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	18 August 2004
Date of Judgment:	18 August 2004