MZWHI v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1046

FEDERAL COURT OF AUSTRALIA

MZWHI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1046

MIGRATION – appeal – adverse credibility finding – no error

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 - cited
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 - cited
Leppington Pastoral Co Pty Ltd v Commonwealth (1997) 76 FCR 318- cited

MZWHI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
VID 636 OF 2005

MERKEL J
29 JULY 2005
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 636 OF 2005

BETWEEN:	MZWHI APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MERKEL J
DATE OF ORDER:	29 JULY 2005
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant pay the respondent’s costs of and incidental to the appeal.

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 636 OF 2005

BETWEEN:	MZWHI APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MERKEL J
DATE:	29 JULY 2005
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The appellant, a citizen of India, applied for a protection visa claiming that he is a refugee as defined by Art 1A(2) of the Convention Relating to the Status of Refugees Opened for signature 28 July 1951. 189 UNTS 150 Art 1A(2). (entered into force 22 April 1954) as amended by the Protocol Relating to the Status of Refugees Opened for signature 31 January 1967. 606 UNTS 267. (entered into force 4 October 1967) (‘the Convention’).  His application was refused by a delegate of the respondent and the refusal was affirmed by the Refugee Review Tribunal (‘the RRT’).  The appellant applied to Weinberg J for an order nisi to review the decision of the RRT and after that application was refused, the appellant applied to Sundberg J for leave to appeal which was also refused.  The appellant then applied out of time, and unsuccessfully, to the Federal Magistrates Court (‘the FMC’) to review the decision of the RRT.  He has now appealed to the Court against the dismissal by the FMC of his application for review.

2. Before the RRT, the applicant claimed to have a well-founded fear of persecution by reason of his actual or imputed political opinion.  The RRT found that the appellant was not a ‘convincing or entirely truthful witness’.  In the result, the RRT did not believe the appellant’s claim that the appellant was or would be a target of members of an opposition party and was not satisfied that the appellant would be persecuted for his actual or imputed political opinion if he were to return to India.

3. The FMC rejected the application for review of the RRT’s decision on three grounds.  The first was that the FMC could find no jurisdictional error by the RRT.  The second was that issue estoppel or Anshun estoppel arose by reason of the prior decision of Weinberg J.  The third ground for the FMC’s decision was that the application for review was in respect of a privative clause decision and was filed out of time.

4. In relation to its first ground for refusing the application, the FMC stated:

   ‘…In this particular case, the findings [of the RRT] go to credit and a rejection of the general claims put forward by the Applicant, specifically his claim that he is at risk should he have to return to India.

   …

   …on the material presented before me it is very obvious from the Contentions of Fact and Law presented by the Applicant that he does wish to re-agitate the findings of fact by the Tribunal which the Court does not have jurisdiction to do.  I have critically read the Tribunal’s decision, looking for any indication that there may have been jurisdictional error.  Based upon my understanding of the matter, I cannot find any error, let alone a jurisdictional error’.

5. The applicant filed a written outline asserting a number of errors by the RRT.  His substantive contention was that those errors resulted in the RRT making the adverse credibility findings that proved to be fatal to his claim of having a well-founded fear of persecution for a Convention reason.  The findings are essentially findings as to whether the appellant should be believed in his claims, which are findings on credibility.  Such findings were referred to by McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 423 [67] as ‘the function of the primary decision-maker par excellence’ and, while not invulnerable to review, are difficult to overcome. That is particularly so where, as has occurred in the present case, the RRT provided a rational basis for not accepting the appellant’s claims and relied upon matters that were logically probative of the issues it was determining: see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 552 and 559.

6. I have considered the decision of the RRT and have been unable to discern any jurisdictional error on its part. The FMC carefully considered the RRT’s decision, and found that jurisdictional error had not been established. Indeed, the application to Weinberg J and the appeal before Sundberg J were refused for substantially the same reason. Similarly, I am not satisfied that any legal or other error was made by the FMC in relation to its third ground for refusing the application; that, in the absence of jurisdictional error, the application was in respect of a privative clause decision and was filed out of time: see s 477 of the Migration Act 1958 (Cth). In summary, the errors now asserted by the applicant yet again seek to re-agitate questions of fact, rather than errors of law. In any event, I am not satisfied that any of the errors asserted were made by the RRT or the FMC.

7. In these circumstances, it is unnecessary to deal with the second ground on which the FMC refused the application, namely, that issue estoppel or Anshun estoppel arose by reason of the prior decision of Weinberg J.  However, I would observe that, as the decision of Weinberg J is an interlocutory decision which did not finally determine any issue, it is difficult to see how the doctrine of issue estoppel or Anshun estoppel could apply: see Leppington Pastoral Co Pty Ltd v Commonwealth (1977) 76 FCR 318 at 353-354 per Beaumont J with whom Jenkinson J agreed and Lehane J substantially agreed.

8. The appeal is to be dismissed with costs. 

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel.

Associate:

Dated:             29 July 2005

For the Appellant:	The Appellant appeared in person
Solicitor appearing for the Respondent:	G Carroll
Date of Hearing:	29 July 2005
Date of Judgment:	29 July 2005