MZWCX v Minister for Immigration, Multicultural

[2005] FCA 475

FEDERAL COURT OF AUSTRALIA

MZWCX v Minister for Immigration, Multicultural
and Indigenous Affairs [2005] FCA 475

MZWCX V MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS

VID 1261 OF 2004

NORTH J
12 APRIL 2005
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1261 OF 2004

BETWEEN:	MZWCX APPELLANT
AND:	MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	NORTH J
DATE OF ORDER:	12 APRIL 2005
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.        The appeal be dismissed with costs fixed, $4000.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1261 OF 2004

BETWEEN:	MZWCX APPELLANT
AND:	MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	NORTH J
DATE:	12 APRIL 2005
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This is an appeal against a decision of Reithmuller FM made on 21 September 2004.  The Federal Magistrate dismissed the appellant’s application for review of the decision of the Refugee Review Tribunal (the Tribunal) on 11 December 2003, by which it affirmed the decision of the delegate of the respondent Mminister not to grant the appellant a protection visa. 

2. The appellant is a citizen of Iran who is ethnically Kurdish.  He claimed before the Tribunal that he was persecuted for his political beliefs and imprisoned for five months on suspicion of possessing and distributing a video cassette which criticised those opposed to the regime in Iran.  The Tribunal disbelieved the appellant’s claim to have been detained in relation to possession of the copies of the video cassette recordings.  It explained its reasons for refusing to accept the claims of the appellant. 

3. It found that if the appellant had been detained whilst in the company of his friend Massoud as he said in the company of his friend Massoud, he would have been concerned about the fate of Massoud.  In his evidence he did not exhibit any such concern.  This made his evidence, in the view of the Tribunal, unlikely.

4. The Tribunal also considered that it was not credible that, as the appellant claimed, his family did not report his absence whilste in detention to the police.  The Tribunal considered that a letter which the appellant produced as evidence of his detention was not at truthful document because it was not addressed to the appellant and was addressed to a company which did not seem to have any connection with the appellant.

5. Part of the appellant’s claim was that upon release from detention he was required to act as a spy for the government authorities.  Again, the Tribunal did not accept this claim because it considered that the information on which he said he was supposed to report, would not be available to the appellant.  Furthermore, other information, such as the existence of satellite dishes, was obvious. 

6. The appellant filed a notice of appeal, the ground of which was that jurisdictional errors were made in refusing the application for review.  No particulars of this ground were given. 

7. On 22 October 2004, the appellant was ordered, by consent, to file an outline of submissions, a list of authorities and legislation by 12 November 2004.  The appellant did not comply with this direction.  The matter was fixed for hearing and in the light of the appellant’s failure to comply with the prior direction, I had my associate telephone the appellant to notify him personally that the appeal would proceed today.

8. The appellant, I am informed, told my associate that he was busy with other appointments.  I had my associate telephone the appellant again and inform him that the matter would proceed and that he stood the risk, if he did not appear, that his appeal would be dismissed in his absence. 

9. The appellant has failed to appear in Court today.  If a party is absent when an appeal is called on for hearing, the Court may proceed with the hearing, either generally or in relation to any claim for relief in the appeal: O 52, r 38A(1)(d) Federal Court Rules.

10. There are a number of bases on which the appeal might be dismissed.  First, the appellant failed to comply with a direction, although he has not been notified that this would be a particular ground for dismissal of his application.  Second, his notice of appeal does not set out any particularised grounds of complaint against the decision of the Federal Magistrate.  But in the end, I rely on the absence of any merit in the appeal.

11. The decision of the Tribunal was based on an assessment of the appellant’s credibility.  The decision was comprehensive and rational.  There is no basis upon which the appellant can succeed by way of judicial review.  The orders of the cCourt will be that the appeal is dismissed with costs, fixed at $4,000.

I certify that the preceding eleven (119) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North j.

Associate:

Dated:             18 April 2005

Applicant:	No appearance
Counsel for the Respondent:	Ms H Riley
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	12 April 2005
Date of Judgment:	12 April 2005