MZWRD v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1125

FEDERAL COURT OF AUSTRALIA

MZWRD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1125

MIGRATION – appeal from Federal Magistrates Court – application for protection visa refused by Refugee Review Tribunal – no error of law or principle

Migration Act 1958 (Cth)

MZWRD v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 841 OF 2005

TAMBERLIN J
SYDNEY
12 AUGUST 2005

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 841 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:	MZWRD APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	12 AUGUST 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The appeal is dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 841 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

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

JUDGE:	TAMBERLIN J
DATE:	12 AUGUST 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of Federal Magistrate Mowbray (“the Federal Magistrate”) delivered on 10 May 2005, dismissing an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 16 July 2004.  The Tribunal affirmed a decision of a delegate of the Minister not to grant a protection visa to the appellant.

2. When the matter came on for hearing before me this morning, I asked the appellant to tell me what he wished to say and he was unable to advance any argument in support of the grounds set out in the Notice of Appeal filed on 30 May 2005.

3. As pointed out by the representative for the Minister in this case, the grounds of appeal are in a very general form and in substance they largely go to a review of the merits of the case, which is not a matter for this Court.  Insofar as legal arguments are sought to be raised by reference to a section of the Migration Act 1958 (Cth) and by reference to decisions of the courts, the arguments have not been developed in any way and no reason is shown in the appellant’s submissions for varying the decision of the learned Federal Magistrate.

4. I have carefully considered the reasons given by the Tribunal and also the reasons of the learned Federal Magistrate and I have taken into account the written submissions filed by the Minister in this matter.  I can detect no error of law or principle which would provide any proper ground to support this appeal.

5. The Tribunal accepted that the appellant was a national of India and that is the country against which his claims were assessed.  The reasons and findings of the Tribunal carefully review the case advanced for the appellant and while they accept some parts of the submissions made by the appellant at the hearing before the Tribunal, in all significant respects the case was not accepted.

6. As the learned Federal Magistrate identified, and as appears from the brief statements which the appellant has made before me this morning, the appellant’s principal concern appears to be the fact that he cannot work in India within his chosen field.  He says that because of his Muslim religion, political affiliations and for other reasons, such as strong competition from other candidates, he cannot find work of the type for which he is qualified.

7. The Tribunal found, and this is a question of fact, that the appellant was able to work as a salesman while he was looking for more suitable employment and that he was not denied the capacity to earn a livelihood of any kind.  This was not a full time job.  However, the Tribunal found, and this is a question of fact and degree and not a question of law or principle, that the appellant's inability to find work within his chosen field did not amount to serious harm.  The approach that the Tribunal took was to say that although it might be preferable to the appellant subjectively to find work where he could use his skills, this was not a case in which the appellant was not able to earn a livelihood at all.  There are decisions in this area of refugee law which indicate that where a person has been totally deprived of an opportunity to work or to earn a living, then that could amount to sufficient harm to constitute persecution for a Convention reason in circumstances where the deprivation was based on one of the Convention grounds.  However, in this case, it was open to the Tribunal, and for the learned Federal Magistrate on review, to take the view that there was no persecution or disadvantage of a sufficient degree to amount to harm, harassment or injury that would fall within the Convention. 

8. As I have said above, this is but one of the grounds on which the appellant has raised concerns, however, it seems to me, having regard to the fact that this is the only matter which the appellant raised orally before me today, that this is the gravamen of his complaint. There is no substance in any other ground and nor is there any substance in the ground which he has advanced today, as it is a question of fact and degree for the Tribunal to determine. 

9. For these reasons, I consider that the appeal in this case must 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 Tamberlin.

Associate:

Dated:            23 August 2005

The Appellant appeared in person with the assistance of an interpreter.
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	12 August 2005
Date of Judgment:	12 August 2005