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4 By way of factual background, the appellant is a Mongolian citizen of Chinese ethnicity who was born on 30 June 1959 in Mongolia where he spent his childhood. He obtained university qualifications in economics, philosophy and history. From 1983 to 1991 he worked as a teacher and as a science researcher. From 1991 to 1996 he was self-employed, trading in commodities. In that period he travelled to and from China many times in the course of his business. He served in the Army Reserve at various times between 1983 and 1996. From 1991 until October 1996, he lived in the same house in Ulan Batur in Mongolia and had never been arrested or detained.

NAAF v Minister for Immigration & Multicultural Affairs [2002] FCAFC 17 (18

NAAF v Minister for Immigration & Multicultural Affairs [2002] FCAFC 17 (18 February 2002); [2002] FCA 119
Last Updated: 6 May 2002


NAAF v Minister for Immigration & Multicultural Affairs [2002] FCAFC 17
NAAF v Minister for Immigration & Multicultural Affairs [2002] FCA 119



NOTE: CHANGES TO THE MEDIUM NEUTRAL CITATION (MNC)
The Federal Court adopted a new medium neutral citation (FCAFC) for Full Court judgments effective from 1 January 2002. Single Judge judgments will not be affected and will retain the FCA medium neutral citation.

The transitional arrangements are as follows:

* All Full Court judgments delivered prior to 1 January 2002 will retain the FCA medium neutral citation.

* All Full Court judgments delivered between 1 January 2002 to 30 April 2002 have been assigned parallel medium neutral citations in both the FCA and FCAFC series.

* All Full Court judgments delivered from 1 May 2002 will contain the FCAFC medium neutral citation only.


FEDERAL COURT OF AUSTRALIA
NAAF v Minister for Immigration & Multicultural Affairs [2002] FCA 119


MIGRATION - refusal of protection visa - Mongolian citizen of Chinese ethnicity - no error in judgment at first instance - effect of s 91X Migration Act 1958 (Cth)

Migration Act 1958 (Cth) s 91X

APPLICANT NAAF v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

No N 1400 of 2001

SPENDER, GYLES, CONTI JJ

18 FEBRUARY 2002

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA


NEW SOUTH WALES DISTRICT REGISTRY
N 1400 OF 2001



BETWEEN:
APPLICANT NAAF

APPELLANT

AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE:
SPENDER, GYLES, CONTI JJ

DATE OF ORDER:
18 FEBRUARY 2002

WHERE MADE:
SYDNEY



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


NEW SOUTH WALES DISTRICT REGISTRY
N 1400 OF 2001



BETWEEN:
APPLICANT NAAF

APPELLANT

AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT



JUDGE:
SPENDER, GYLES, CONTI JJ

DATE:
18 FEBRUARY 2002

PLACE:
SYDNEY




REASONS FOR JUDGMENT
SPENDER J:

1 The Court has reached a conclusion on the matter. No utility would be served by adjourning the giving of our reasons for that conclusion.

2 By notice of appeal filed on 5 October 2001 the appellant appeals from the decision of a single judge of this court (Sackville J) who, on 24 September 2001, dismissed an application for review of a decision of the Refugee Review Tribunal of 12 July 2001 affirming a decision to refuse a protection visa to the present appellant.

3 The notice of appeal states as the only ground:

"His Honour the judge has made the wrong decision."

4 By way of factual background, the appellant is a Mongolian citizen of Chinese ethnicity who was born on 30 June 1959 in Mongolia where he spent his childhood. He obtained university qualifications in economics, philosophy and history. From 1983 to 1991 he worked as a teacher and as a science researcher. From 1991 to 1996 he was self-employed, trading in commodities. In that period he travelled to and from China many times in the course of his business. He served in the Army Reserve at various times between 1983 and 1996. From 1991 until October 1996, he lived in the same house in Ulan Batur in Mongolia and had never been arrested or detained.

5 He arrived in Australia from Mongolia on 16 October 1996 as the dependant of his wife who then held a student visa. The appellant and his wife divorced on 16 October 1997. His wife returned to Mongolia with the appellant's two sons.

6 On 23 March 2001 the appellant first applied for a protection visa. He was then in immigration detention. The Refugee Review Tribunal found the appellant did not have a well founded fear of persecution for a Convention reason. It found adversely to the appellant's credibility saying:

"[T]he applicant was not a good witness and [the Tribunal] is not satisfied that any of his significant claims has any basis in fact."
7 On the application to review, the trial judge summarised the reasoning in the Tribunal and referred to the adverse finding on credibility. The trial judge concluded:

"As I have indicated the applicant did not put forward any grounds of review either in his application to this Court or in his oral submissions today. It follows that no basis has been advanced by the applicant for challenging the decision of the tribunal. It is, however, appropriate to reiterate the limited role that this Court plays in applications of this kind. The Court's powers are limited by Part 8 of the Act [Migration Act 1958 (Cth)]. It can interfere with a decision of the Tribunal only if one of the specified grounds of review is made out.
It is not a basis for review of the Tribunal's decision that the court does not agree with the findings of fact made by the Tribunal."

8 In this court the appellant referred to three matters, none of which deals with or challenges the legal correctness of the judgment of the judge below.

9 The first is the correction quite close to the hearing before the primary judge of incorrect country information being included in the papers prepared for the hearing. While it would have been better had the error not occurred, the fact that it did provides no basis for doubting the correctness of the primary judge's conclusion.

10 The second matter which the appellant raised before this court concerns the continued publication of his name on the internet in the judicial decisions recorded on the SCALEplus database. Section 91X of the Migration Act 1958 (Cth) did not come into effect until after the judgment of Sackville J given on 24 September 2001 and the prohibition contained in s 91X(2) is a prohibition binding on the Court. The section does not, after the commencement of s 91X, prohibit the publication by another party of judgments delivered before the coming into operation of that section. It is understandably a matter of continuing concern to the present appellant that the matters referred to in that judgment can still be sheeted home to the appellant by virtue of the continued publication of his name in the report available on the internet.

11 The third matter is a notification of detention costs which appears to have been served on the appellant on 4 October 2001. This might be thought insensitive, and there may be reason for thinking that the costs really are non-commercial in their quantum, but that aspect of the matter provides no basis for challenging the correctness of the primary judgment in this case.

12 In my opinion the decision of Sackville J was correct. No error has been demonstrated in that decision. The appeal should be dismissed with costs.

GYLES J:

13 I agree with the orders proposed by Spender J and with the reasons he has expressed for those orders.

CONTI J:

14 I agree.

SPENDER J:

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

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, Gyles and Conti.



Associate:

Dated: 20 February 2002

The appellant appeared on his own behalf




Counsel for the Respondent:
Ms N. Abadee




Solicitor for the Respondent:
Ms B.S. Markovic




Date of Hearing:
18 February 2002




Date of Judgment:
18 February 2002

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