MZWGL v Minister for Immigration and Multicultural and Indigenous Affairs

[2006] FCA 168

FEDERAL COURT OF AUSTRALIA

MZWGL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 168

MZWGL v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
VID288 OF 2005

WILCOX J
24 FEBRUARY 2006
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID288 of 2005

BETWEEN:	MZWGL APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	24 FEBRUARY 2006
WHERE MADE:	MELBOURNE

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
VICTORIA DISTRICT REGISTRY	VID288 of 2005

BETWEEN:	MZWGL APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	WILCOX J
DATE:	24 FEBRUARY 2006
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

WILCOX J:

1. This is an appeal against a decision of Federal Magistrate McInnis dismissing an application to review a decision of the Refugee Review Tribunal. The Tribunal had decided to affirm a decision of a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, to refuse to grant the appellant a protection visa. The Chief Justice directed, pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth), that the appeal be heard and determined by a single judge.

2. The appellant filed some submissions in support of his appeal.  These submissions referred to some well-known grounds of jurisdictional error:  denial of natural justice, no evidence and failure to take into account a relevant consideration.  The appellant supported these grounds by references to numerous authorities but failed to relate any of the grounds to the facts of his case.  The closest he came to this was to say that there was no evidence to justify the Tribunal disbelieving his oral evidence and making adverse comments about its plausibility and consistency.

3. This is not a no evidence argument.  It was for the appellant to satisfy the Tribunal about the facts on which he relied, in support of his claim that he had a well-founded fear of persecution if returned to his country of nationality.  It was for the Tribunal to evaluate the evidence given and determine whether it was credible, and if so, whether it provided information that enabled the Tribunal to find that there was a real chance of persecution if the applicant returned home.

4. The appellant appeared in person at the hearing of the appeal, assisted by an interpreter.  He informed me the problem was that he and the Tribunal member did not understand each other.  Although the appellant had apparently had the assistance of a migration agent at some stage, he was not assisted by a migration agent or lawyer before the Tribunal.

5. According to the appellant, there was no interpreter at the Tribunal hearing.  The appellant told me today that he had thought he could speak English well enough, but at the hearing he found he could not understand the Tribunal member and he did not think the Tribunal member understood him. 

6. There is nothing in the Tribunal’s reasons for decision which suggests the Tribunal member was conscious of a communication difficulty.  No action was taken by the appellant to obtain the tape, or a transcript, of the Tribunal hearing.  No complaint was made to the magistrate about a communication problem at the Tribunal’s hearing.  So far as I am aware, today is the first occasion on which there has been a suggestion of such a problem.  This is an appeal against the magistrate's decision and it would require the leave of the Court for the appellant to introduce fresh evidence, even supposing he had fresh evidence available.  He does not. 

7. In the absence of any evidence to suggest that the Tribunal hearing miscarried because of communication problems, I have to reject this argument.  No other argument has been put to the Court. 

8. The magistrate reviewed the matter carefully.  He summarised the case that was put by the appellant to the Tribunal and noted the Tribunal's reasons for failing to accept that case.  The magistrate said this:

   ‘Applying the authorities to which I have been referred, it seems clear to me that the RRT has embarked upon its fact finding process and an assessment of credit in a manner that was reasonably open.  I cannot detect any error of a kind which would justify this Court concluding that there has been jurisdictional error and that accordingly there should be any judicial review in a manner favourable to the application.  Whilst it appears that the applicant continues to be aggrieved by the findings of the RRT, the fact that he is aggrieved by those findings is not of itself a sufficient basis upon which this Court should uphold the application.  On a proper reading of the RRT’s decision, it, in my view, has appropriately referred to the specific submissions lodged by the applicant and has had regard to the evidence given by the applicant.’

9. I agree with these comments.  I see no basis upon which it can be said there was jurisdictional error.  It follows that I agree with the magistrate's decision.  The appeal will be dismissed with costs.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated:             8 March 2006

The Appellant appeared in person.
Counsel for the Respondent:	Mr S Hay
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	24 February 2006
Date of Judgment:	24 February 2006