MZWRV v Minister for Immigration
[2005] FMCA 387
•1 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWRV v MINISTER FOR IMMIGRATION | [2005] FMCA 387 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa. |
Migration Act 1958 (Cth)
| Applicant: | MZWRV |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MLG 1320 of 2004 |
| Delivered on: | 1 March 2005 |
| Delivered at: | Melbourne |
| Hearing Date: | 1 March 2005 |
| Judgment of: | Riethmuller FM |
REPRESENTATION
| Counsel for the Applicant: | No appearance |
| Counsel for the Respondent: | Mr Lewis |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The applicant’s application filed 14 October 2004 be dismissed.
The applicant do pay the respondent’s costs fixed in the sum of $6,200.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1320 of 2004
| MZWRV |
Applicant
and
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for judicial review of a Refugee Review Tribunal (‘the RRT’) decision.
The applicant is a citizen of India. He arrived in Australia on
16 February 2003 on a student visa. He was enrolled to undertake a course, ‘Masters of Information Technology’ at Swinburne University. On 9 March 2004 he lodged an application for a protection visa.
On 26 March 2004 a delegate of the respondent refused the application on the basis that the applicant did not have a well‑founded fear of persecution for a convention based reason.
On 19 April 2004 the applicant applied to the RRT for a review of that decision. The RRT conducted a hearing on 16 July 2004 at which the applicant and his solicitor attended. On 19 July 2004 the RRT wrote to the applicant providing him with the opportunity to comment upon further information that was outlined in that letter. This was responded to by the applicant on 9 August 2004.
The RRT subsequently handed down its decision on 17 September 2004 affirming the decision of the delegate. On 14 October 2004 the applicant made the current application for judicial review of the RRT's decision.
The substance of the applicant's case before the RRT was that as a result of his membership and support of the Congress Party he faced a real chance of persecution from political opponents in the Telugu Desam Party (TDP). The applicant's solicitor filed an application containing only one ground for the application in the following terms:
The Tribunal acted without jurisdiction or fell into jurisdictional error in making the decision.
PARTICULARS
Particulars will be provided.
The application's grounds are, in my view, wholly inadequate in that they fail to identify any ground to demonstrate that the RRT acted without jurisdiction or fell into jurisdictional error. The applicant filed no statement of facts and contentions, no further particulars and no other documents despite directions to do so being made by Registrar Wood on 11 November 2004. The only further steps taken by the applicant or his solicitor was a notice of withdrawal filed by the applicant's solicitor on 9 February 2005.
A review of the RRT decision shows that in essence the RRT found that the applicant was not credible and did not accept the applicant's claims. The matter is well summarised in paragraphs 14 of respondent’s contentions of fact and law in the following terms:
The Tribunal found in essence that the applicant was not a credible witness. Towards the end of its decision, the Tribunal stated that:
“Most significantly, in spite of repeated prompting and repeated opportunity to respond, the applicant was unable to provide detailed and convincing evidence in relation to any aspect of his claimed political involvement. With regard to most issues, the Tribunal did not press the applicant for precise dates of events. The Tribunal’s concerns about this evidence arouse due to a general inability to provide more than the most general evidence about the various aspects of his claimed political activities. In spite of the difficulties asserted by the applicant, the Tribunal finds that the nature of his evidence about his political activity was simply not consistent with his claimed level of involvement.”
Credibility findings of this kind are matters that are inherently within the jurisdiction of the Tribunal. They are not matters that enliven the Court’s jurisdiction in a judicial review application. This is because “a finding as to credibility is a finding of fact and, as the authorities indicate, a reviewing body must not set aside such a finding simply because it thinks that the probabilities of the case are against, or even strongly against, the finding”. In NADR v Minister for Immigration and Multicultural and Indigenous Affairs Heerey, RD Nicholson and Selway JJ held that:
“The second ground of appeal was that the primary judge erred in not finding an error of law in the credibility finding of the Tribunal. The finding of facts, including the making of findings of credibility, was uniquely within the jurisdiction of the Tribunal and not within the jurisdiction of the Court. It would have been a contravention of Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR at 272 for the Court to have engaged in merits review.”
In the circumstances I see no basis for a judicial review claim apparent on the material, nor is any proper basis for such a claim even hinted at in the material filed by the applicant. I therefore order that the application be dismissed.
In the circumstances I see no reason why the minister should not be entitled to his costs. I order that the applicant pay the costs of the respondent fixed in the sum of $6,200.00, which I find to be a reasonable sum in the circumstances.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
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