FEDERAL COURT OF AUSTRALIA

NAGN v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 1551

NAGN v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 1533 OF 2003

WHITLAM J

27 NOVEMBER 2003

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

The appeal is dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     This is an appeal from a judgment of the Federal Magistrates Court dismissing with costs an application in respect of a decision of the Refugee Review Tribunal (‘Tribunal’) made on 4 November 2002:  NAGN v Minister for Immigration [2003] FCA 453.  The background to the proceedings in the Tribunal is set out in the reasons for judgment in the court below.

2                     The application in that court was treated as an application under section 483A of the Migration Act 1958 (Cth) (‘Act’) so that, effectively, it sought to invoke the same jurisdiction that exists in this court under s 39B of the Judiciary Act 1903 (Cth).  Such an application had to be lodged within the time prescribed by s 477(1A) of the Act if the Tribunal’s decision is a privative clause decision.  The appellant lodged an application for review in this Court in December 2002.  The appellant discontinued that proceeding on 8 April 2003.  The appellant commenced the proceeding that is the subject of this appeal on 5 May 2003.

3                     The grounds of the application to the Federal Magistrates Court alleged error of law, lack of procedural fairness and the so-called no evidence ground.  There was no allegation that the decision of the Tribunal was not a privative clause decision or that the decision of the Tribunal involved jurisdictional error.  Nonetheless, the magistrate in the court below considered that question and said that he was unable to find any jurisdictional error. 

4                     The grounds of appeal in the notice of appeal filed in this court on 13 October 2003 repeat the grounds stated in the application for review in the court below.  It is apparent that to succeed the appellant must establish error on the part of the magistrate on the question of whether there was jurisdictional error in the Tribunal’s determination of his application for a protection visa.  Appropriately, the respondent’s submissions have been framed in terms of whether or not the Tribunal’s decision was affected by jurisdictional error.

5                     That is not the way in which the matter is stated in the notice of appeal but it is plainly the hurdle that the appellant must overcome in order to get his appeal off the ground.  I need only say that I completely agree with the reasons for judgments of the learned Federal Magistrate.  There was no jurisdictional error that affected the decision of the Tribunal.

6                     At the hearing today the appellant has repeated some of the submissions contained in written submissions filed before the appeal was called on for hearing.  He invokes the case of Muin which he plainly does not understand.  I am left with the unfortunate impression that those guiding the appellant who are not in court today, and who are unqualified, have led the appellant to believe that this hopeless appeal should be pursued.  However that may be, the appellant must bear the consequences of his hopeless appeal and costs will be ordered against him.

7                     Accordingly, the order of the Court is that the appeal is dismissed with costs.

Associate:

Dated:              19 December 2003