MZWEL v Minister for Immigration

[2005] FMCA 21

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZWEL v MINISTER FOR IMMIGRATION [2005] FMCA 21

MIGRATION – Findings on credibility.

Migration Act 1958, s.474

Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547

Applicant: MZWEL

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: MLG 340 of 2004

Delivered on: 21 January 2005

Delivered at: Melbourne

Hearing date: 19 November 2004

Judgment of: O’Dwyer FM

REPRESENTATION

Applicant: In person (assisted by Interpreter,
Mr Amarasibr)

Counsel for the Respondent: Mr Heerey

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. The Amended Application for Review filed on 18 October 2004 be dismissed.

2. The Applicant pay the costs of the Respondent fixed in the sum of $6,500.00 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 340 of 2004

MZWEL

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 on 23 March 2004 and later amended in an amended application filed on 18 October 2004.  The Applicant seeks to review the decision of the Refugee Review Tribunal (the Tribunal) made on
   20 January 2004 which affirmed an earlier decision of the Respondent’s delegate refusing to grant to the Applicant a Protection (Class XA) visa.

Background

1. The background to the Applicant and the history of the Applicant’s application for a protection visa is more fully spelt out in the decision of the Tribunal and the contentions of fact and law submitted by the parties.  Suffice to say, the Applicant is a Sri Lankan citizen of
   34 years, born of a Tamil mother and a Sinhalese father.  For a variety of reasons the Applicant claims he is at risk of persecution from both the Liberation Tigers of Tamil Eelam and the Sri Lankan government should he be forced to return to Sri Lanka.

Contentions

1. In his amended application for review and in his contentions of fact and law, the Applicant claims the Tribunal’s decision is affected by jurisdictional error by asking itself the wrong question and/or identifying the wrong issue when interpreting or applying the definition of a refugee, and especially on the question of the Applicant’s

   
   

   “well founded fear” as that expression is used in defining someone in need of protection under the Refugee Convention.  The Applicant particularises various examples of how the Tribunal erred.  I do not intend to examine each, save to say that much of them are predicated on the assumption the Tribunal was wrong in not accepting the evidence of the Applicant and wrong in not finding him and his claims credible. 

2. In Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 the Full Court considered the difficulties confronting a refugee claimant wishing to challenge adverse findings on credibility issues. The Court observed:

   ·there can be no error of law where a Tribunal makes findings on credibility issues that were open on the material before it after consideration of matters that were logically probative of the issue of credibility (at 552 and 559);

   ·the Tribunal can be expected to be sensitive to the special considerations that arise in relation to assessing credibility of refugee claimants (at 557-559); and

   ·ultimately, the Tribunal’s role is to determine whether, on the totality of the material available to it, it was satisfied that the applicant is a person to whom Australia has protection obligations under the Convention (at 556).

3. The reasons proffered by the Tribunal that give rise to its conclusions on credit, in my view, are compelling and logically probative of the issue of credit.  The Applicant has not demonstrated that the adverse credibility findings of the Tribunal were not open to it on the material before it.  In my view, much of the Applicant’s contentions and challenge to the credibility findings amounts to an impermissible endeavour to reargue the matter on the merits.

4. The Respondent in her contentions of fact and law filed on
   4 November 2004 addresses the more particularised claims of the Applicant pertinent to this review hearing.  I don’t intend to set those matters out in detail, but simply concur with the contentions of the Respondent.

Conclusion

1. The decision of the Tribunal did not involve any error, let alone jurisdictional error. As a consequence, the Tribunal’s decision, which is a privative clause decision, is entitled to protection under s.474 of the Migration Act1958.  The application for review should be dismissed.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of O’Dwyer FM

Associate: 

Date:  21 January 2005