MZWAV v Minister for Immigration

[2005] FMCA 257

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZWAV v MINISTER FOR IMMIGRATION [2005] FMCA 257

MIGRATION – Re-agitation of facts – no jurisdictional error - impermissible merits review.

Migration Act 1958, s.474

NADR v Minister of Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167

Applicant: MZWAV

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: MLG 1349 of 2003

Delivered on: 7 February 2005

Delivered at: Melbourne

Hearing date: 7 February 2005

Judgment of: O’Dwyer FM

REPRESENTATION

The Applicant: In person

Counsel for the Respondent: Ms Moore

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The Application filed 1 December 2003 be dismissed.

2. The Applicant pay the costs of the Respondent fixed in the sum of $5,500.00 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1349 of 2003

MZWAV

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Introduction

1. This proceeding comes before the Court on an application for review filed by the Applicant on 1 December 2003.  The Applicant seeks to review the decision of the Refugee Review Tribunal (the Tribunal) made on 21 November 2003, which decision affirmed an earlier decision of the Respondent’s delegate made on 14 May 2001 refusing to grant the Applicant a protection visa.

Background

1. The Applicant is a single 26 year old male citizen of Lebanon.  He is of Eshitiraki ethnicity and the Druze faith.

2. The Applicant last entered Australia on 26 December 2000 on a valid Lebanese passport containing a valid subclass 676 visitor visa to enter Australia.  The Applicant has a sister who is an Australian citizen and resides in Australia and three other siblings who live in Lebanon. 

   
   

   Prior to his arrival in 2003, the Applicant had previously been in Australia between 12 May 1997 and 26 August 1997 to visit his sister.

3. On 6 February 2001 the Applicant applied to the Department of Immigration and Multicultural Affairs (as it then was) for a protection visa pursuant to the Migration Act 1958 (the Act).  The visa application was accompanied by a statutory declaration of the Applicant which set out his claims for a protection visa.

4. The visa application included the Applicant’s mother and father as members of his family unit who were not making claims of their own to be refugees.

5. On 14 May 2001 a delegate of the Respondent decided to refuse the visa and on 21 May 2004 the Applicant applied to the Tribunal for a review of that decision.  On 31 July 2001 the Tribunal received a written statement from the Applicant setting out his claims. The Tribunal held a hearing on 23 September 2003.  The Applicant and his parents gave evidence with the assistance of an Arabic interpreter.  The Tribunal affirmed the decision of the delegate.

Contentions

1. The Applicant’s application for review does not set out any grounds of review.  In a document filed on 18 August 2004 by the Applicant described as “an amended application and contention of fact and law”, the Applicant, in essence, took issue with the Tribunal’s findings of fact, re-agitated matters previously presented to the delegate and the Tribunal, and invited this Court to reach a different conclusion as to his entitlement to a protection visa from that reached by the Tribunal.

2. In addition, the Applicant informed the Court of the serious health problems of his mother and her inability to obtain appropriate care in Lebanon should she be forced to return there.  He also desired to produce photographs of his sister’s injuries caused by gunshots when in Lebanon, believing this may make his claim more credible and persuasive.  It should be noted that the Tribunal accepted that his sister was the victim of such an attack and the lack of photographs for the consideration of the Tribunal would have made no difference to the Tribunal’s determination.  In respect of his mother’s unfortunate health problems, as very concerning and significant as they are for the Applicant and his family, they are irrelevant to this Court’s inquiry as to the validity of the Tribunal’s decision.

3. The Applicant was not legally represented.  Because of that I took particular care to critically examine the Tribunal’s decision to determine whether it had, on the face of it, made an error of law, in particular a jurisdictional error.  I could not discern one. 

4. The Tribunal carefully examined the evidence presented by the Applicant and also availed itself of information pertinent to the claims made by the Applicant, in particular the political circumstances prevailing in Lebanon, and the role, influence and circumstances of the Druze community.  The Tribunal addressed all of the claims raised in the Applicant’s contentions and, having done so, made findings of fact that were open to it.  In doing so the Tribunal displayed, in my view, sound probative logic.

5. It was obvious that the Applicant in his written and verbal contentions required of this Court that it conduct a merits review of the decision of the Tribunal.  This Court is not permitted to undertake such a review. (see NADR v Minister of Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167).

Conclusion

1. I find that there was no error of law on the part of the Tribunal, let alone a jurisdictional error.  Accordingly, the decision of the Tribunal is protected as a privative clause decision under s.474 of the Act. 

   
   

   In those circumstances, the only order the Court can make is to dismiss the application for review filed on 1 December 2003.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of O’Dwyer FM

Associate: 

Date: 7 February 2005