MZWIK v Minister for Immigration

[2004] FMCA 1097

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZWIK v MINISTER FOR IMMIGRATION [2004] FMCA 1097

MIGRATION – Re-agitation of facts – no jurisdictional error – impermissible merits review.

Rahman v Minister for Immigration & Multicultural Affairs [2000] FCA 1277
Rodrigo v Minister for Immigration & Multicultural Affairs [2001] FCA 1027

Applicant: MZWIK

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: MLG 574 of 2004

Delivered on: 21 December 2004

Delivered at: MELBOURNE

Hearing date: 21 December 2004

Judgment of: O’Dwyer FM

REPRESENTATION

The Applicant: No appearance

Counsel for the Respondent: Mr R C Knowles

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The application filed 15 November 2004 be dismissed.

2. The Applicant pay the costs of the Respondent fixed in the sum of $6,000.00 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 574 of 2004

MZWIK

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This matter comes before me on an application by Applicant to have the decision of the Refugee Review Tribunal (the Tribunal) made on

   
   

   3 March 2003 set aside.  The Applicant also seeks by way of relief a writ of certiorari quashing the decision, a declaration the decision is invalid, and an order remitting the matter to the Tribunal to have the matter determined in accordance with law.

2. It is clear from the material filed on behalf of the Applicant that the general thrust of his application to this court is, in effect, an application for a merits review of the Tribunal's decision.  In my view, those issues that are taken by the Applicant with that decision are merely a contest on the merits.  The application is worded in such a way as to challenge the findings of the Tribunal in relation to the facts determined by that Tribunal.  A reading of the decision clearly shows that the Tribunal formed an adverse assessment of the credibility of the Applicant and, in forming that view, the Tribunal went to some length to describe inconsistencies in the evidence and the reason for its determination that the evidence of the Applicant was insufficient to support the general contentions that the Applicant was somebody to whom this country owed a Convention responsibility to protect.

3. The only matter which does not address the question of a merits review in the Applicant's case is the assertion that there was an error of law by the Tribunal in finding that injuries suffered in a brawl by the Applicant did not amount to persecution as defined in the Convention.  In my view, the Tribunal Member examined this issue very thoroughly and applied the appropriate authorities when reaching that determination (see Rahman v Minister for Immigration & Multicultural Affairs [2000] FCA 1277 and Rodrigo v Minister for Immigration & Multicultural Affairs [2001] FCA 1027). Those authorities stand for the proposition that injury or conflict in the nature of a general brawl arising out of political contest, did not amount to a situation that would attract the protection of this country under the Convention, and did not amount to persecution. This was the situation applicable to the Applicant.

4. Therefore, I find that the application is without merit. 

   
   

   It attempts to challenge the fact‑finding of the Tribunal which this court does not have jurisdiction to entertain.  Accordingly, the application will be dismissed with costs.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of O’Dwyer FM

Associate: 

Date:           21 December 2004