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MIGRATION – deportation – whether application seeking review of decision of Administrative Appeals Tribunal affirming deportation order is competent – application filed out of time – whether tribunal decision a "privative clause decision" – no arguable ground of appeal

Ngu v Minister for Immigration & Multicultural & Indigenous Affairs [2004]

Ngu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 21 (10 February 2004)
Last Updated: 13 February 2004

FEDERAL COURT OF AUSTRALIA


Ngu v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCAFC 21



MIGRATION – deportation – whether application seeking review of decision of Administrative Appeals Tribunal affirming deportation order is competent – application filed out of time – whether tribunal decision a "privative clause decision" – no arguable ground of appeal





Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth) s 477


Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24












HUNG THE NGU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

No W 178 of 2003



SPENDER, BRANSON, STONE JJ
PERTH
10 FEBRUARY 2004



IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W 178 OF 2003

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


BETWEEN: HUNG THE NGU
APPELLANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGES: SPENDER, BRANSON, STONE JJ
DATE OF ORDER: 10 FEBRUARY 2004
WHERE MADE: PERTH


THE COURT ORDERS THAT:


1. The appeal be dismissed.
2. The appellant pay the respondent’s costs.







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


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W 178 OF 2003

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


BETWEEN: HUNG THE NGU
APPELLANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT


JUDGES: SPENDER, BRANSON, STONE JJ
DATE: 10 FEBRUARY 2004
PLACE: PERTH


REASONS FOR JUDGMENT

SPENDER J:

1 This is an appeal from orders made by a judge of this court (R.D. Nicholson J) on 24 July 2003. His Honour ordered that the respondent Minister’s notice of objection to competency be upheld, that the application of Mr Ngu be dismissed and that the applicant pay the respondent’s costs of the application and the notice of objection to competency.

2 Mr Ngu has filed a document headed "Application" dated 12 August 2003. In paragraph 1 of that document Mr Ngu says:

‘I wish to appeal to the Full Federal Court of Western Australia the decision of Justice J. Nicholson and the decision of Federal Court made on 24 July 2003.

2. Justice J. Nicholson’s decision was handed down on 12 August 2003.’

3 The ground of the application is expressed to be:

‘This application is to appeal against the deportation order due to the misleading information were given to the Immigration Department.

4 The appellant filed submissions on 2 February 2004. The written submissions are somewhat extensive and number fourteen paragraphs. I will return to that document shortly.

5 The background to the appeal is as follows. The appellant was born on 11 January 1974 and is a citizen of Vietnam. He arrived in Australia on 10 June 1992 as a dependant of his mother who was granted a permit to migrate to Australia to marry. He was granted permanent resident status on 21 July 1992.

6 The appellant was convicted on 25 October 1996, after a trial in the Supreme Court of Western Australia, on two counts of unlawful wounding with intent and one count of unlawfully doing grievous bodily harm. The charges arose out of shooting incidents on 15 April 1995. A deportation order was made against the appellant on 21 June 1998. The appellant sought reconsideration of that decision by the Administrative Appeals Tribunal ("The AAT"). The AAT decided on 11 August 1999 to affirm the decision to deport the appellant.

7 The first application to the Federal Court was an application dated 2 November 2001, made under s 39B of the Judiciary Act 1903 (Cth), for judicial review of the decision of the AAT. A notice of objection to competency was filed on 7 December 2001 in relation to that application, based on the delay in making the application beyond the time limit set by s 477 of the Migration Act 1958 (Cth). On 13 August 2002 the primary judge in the present appeal made orders upholding the respondent’s objection to competency.

8 A Full Court of the Federal Court allowed an appeal against those orders and remitted to the primary judge the respondent’s objection to competency. The reason for the making of the order by the Federal Court was that the first decision of the primary judge had been made prior to the delivery by the High Court of the judgment in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24. Accordingly, the primary judge had not considered the question of whether the AAT had committed a jurisdictional error in assessing whether the notice of objection to competency should be upheld.

9 The notice of objection to competency remitted to the primary judge by the Full Court and the substantive application were heard together by the primary judge on 24 July 2003. On that date his Honour made the orders upholding the objection to competency and dismissing the application. His Honour referred to the remittal by the Full Court to him and the basis for it, and referred to the eleven stated grounds in the outline of written submissions which had been lodged on behalf of the applicant. Before the primary judge the present appellant had been assisted by a law student acting as a McKenzie friend.

10 After a careful consideration of the eleven stated grounds in that outline, his Honour concluded that there was no case for finding jurisdictional error in respect of any of the paragraphs in that outline. His Honour said:

‘The consequence of that conclusion is that the decision made by the Tribunal is a privative clause decision under s 474 of the Migration Act 1958. Consequently, the time limit under s 477 of the Act applied. The application before the Court is therefore incompetent. Pursuant to s 477(2) of the Act the Court cannot allow the applicant to lodge an application outside the time limit specified in s 477(1). I therefore uphold the objection to competency and consider that the application should be dismissed.’

His Honour then made the orders the subject of this appeal.

11 I have already referred to what was stated in the initiating document of this appeal. The appellant has acted on his own behalf and it is obvious that he has not had the benefit of any legal assistance. The fact of the matter, however, is that this is an appeal from the decision of a judge of the Federal Court of Australia. The Court’s role on this appeal is limited to an assessment of whether the primary judge erred in law in concluding that the decision of the AAT was not affected by jurisdictional error.

12 The notice of appeal filed by the appellant acting in person does not contain any proper grounds or, indeed, any grounds at all.

13 The document which was filed by the appellant on 2 February 2004 and which canvasses a number of factual matters and aspects of the decision of the AAT, makes self-serving statements as to the circumstances of the offence on which a jury convicted the appellant and seeks to set up a different version of events minimising the involvement and culpability of the appellant. In addition, those submissions recite a number of complaints concerning his treatment both in prison and in detention. He also complains that there were a number of errors concerning the proceedings before the AAT and in respect of its conclusions, and there are also some matters of a personal kind as to why he wishes not to be deported.

14 The submissions do not raise any issues which might be arguable grounds of appeal. None of the material referred to in the written submissions can be understood to raise any suggestion of error by the primary judge in his conclusion that the decision of the AAT was not affected by jurisdictional error. There are no proper grounds asserted in the document initiating this appeal, nor are any arguable grounds of appeal raised in the material before the court.

15 While it is understandable that a person for whom English is a foreign language and who has not the benefit of legal advice may not be able to appreciate what has to be established for a successful appeal, this so-called appeal has been a serious waste of the court resources and of public moneys. In my view, there are no arguable grounds of appeal and the appeal should be dismissed with costs.

BRANSON J:

16 I agree that there are no arguable grounds of appeal before the Court and that the appeal should be dismissed with costs.

STONE J:

17 I agree that the appeal should be dismissed with costs for the reasons given by the presiding judge and Branson J.

SPENDER J:

18 The order of the Court is that the appeal is dismissed with costs.




I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, Branson and Stone .



Associate:

Dated: 13 February 2004



The appellant appeared on his own behalf



Counsel for the Respondent: Mr M.T. Ritter



Solicitor for the Respondent: Australian Government Solicitor



Date of Hearing: 10 February 2004



Date of Judgment: 10 February 2004
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