MZWBO v Minister for Immigration - [2005] FMCA 268

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZWBO v MINISTER FOR IMMIGRATION

[2005] FMCA 268

MIGRATION – Review of decision of Refugee Review Tribunal – refusal of application for protection visa – privative clause decision – findings as to credit – evidence considered and rejected by RRT – no jurisdictional error – application dismissed – costs.

Judiciary Act 1903 (Cth)
Migration Act 1958 (Cth)

Plaintiff S157/2002 v Commonwealth of Australia (2003) 77 ALJR 454
Abebe v Commonwealth of Australia (1999) 162 ALR 1
W375/01A v Minister for Immigration for Immigration and Multicultural Affairs (2002) 67 ALD 757
Applicant M189 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1218
Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2002] HCA 1

Applicant:

MZWBO

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MLG 1501 of 2003

Delivered on:

11 February 2005

Delivered at:

Melbourne

Hearing Date:

11 February 2005

Judgment of:

Hartnett FM

REPRESENTATION

Counsel for the Applicant:

Mr Fernandez

Solicitors for the Applicant:

Mano Associates

Counsel for the Respondent:

Ms Mcdonnell

Solicitors for the Respondent:

Australian Government Solicitor

ORDER

The application is dismissed.
The applicant pay the costs of the respondent fixed in the sum of $5,600.
Pursuant to rule 21.15 of the Federal Magistrates Court Rules2001 the Court certifies that it was reasonable for the parties to employ an advocate.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1501 of 2003

MZWBO

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant is an Indian national who arrived in Australia on a visitor visa on 13 December 2001. On 9 January 2002 he applied for a protection visa. In support of that application the applicant's agent submitted a statement by the applicant dated 6 March 2002 and a copy of a newspaper article. I note that the application itself was not contained in the court book, but the applicant took no issue with its contents as referred to in the reasons for decision of the Refugee Review Tribunal, nor likewise as to the accuracy of any references made to it in the contentions of fact and law of the respondent.
On 5 June 2002 the delegate refused the grant of a visa, and on 2 July 2002 the applicant lodged an application with the Refugee Review Tribunal (the Tribunal) for review of the decision to refuse the visa.
The applicant gave oral evidence to the Tribunal on 21 August 2003. The Tribunal had before it the Department's file which included the protection visa application, written submissions by the applicant's adviser dated 7 March 2002 and 12 April 2002 (with attachments) and the delegate's decision record. The Tribunal affirmed the delegate’s decision on 21 November 2003, that being the date upon which the decision was handed down
On 23 December 2003 the applicant commenced proceedings in this Court pursuant to section 39B of the Judiciary Act 1903 and section 475A of the Migration Act 1958 (Cth)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] FMCA 268
Decision Date: 11 February 2005

CaseChat Overview and Summary

In the Federal Magistrates Court, the applicant, MZWBO, an Indian national, sought a review of a decision by the Refugee Review Tribunal (RRT) to affirm the Minister for Immigration and Multicultural and Indigenous Affairs' refusal to grant a protection visa. The applicant, who had arrived in Australia on a visitor visa in December 2001, claimed to be a refugee under the Refugees Convention due to threats from the Rashtriya Swayamsevak Sangh (RSS) and fears of persecution in India. The RRT found the applicant's claims to be inconsistent and unconvincing, leading to the refusal of the visa application. The applicant sought judicial review of the RRT's decision, arguing that the Tribunal had erred in disbelieving his claims without sufficient evidence.

The legal issues before the court included whether the RRT's decision was vitiated by jurisdictional error and whether the RRT correctly assessed the applicant's credibility and evidence. The court examined the RRT's reasoning, particularly its findings regarding the applicant's credibility and the inconsistencies in his testimony. The RRT had considered the evidence presented by the applicant but rejected it due to its lack of credibility, particularly in light of significant inconsistencies. The court found that the RRT had appropriately exercised its function to assess credibility and had provided sufficient reasons for its decision. The RRT's conclusion that the applicant did not have a well-founded fear of persecution was supported by its findings on the applicant's credibility and the evidence presented.

The Federal Magistrates Court concluded that the RRT had fulfilled its duties under the Migration Act, and the application for review was dismissed. The applicant was ordered to pay the respondent's costs. The court certified that the use of an advocate was reasonable for the parties.

Orders