Mzwse v Minister for Immigration
[2005] FMCA 378
•2 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWSE & ORS v MINISTER FOR IMMIGRATION | [2005] FMCA 378 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa. |
Migration Act 1958 (Cth)
| Applicants: | MZWSE, MZWSF, MZWSG & MZWSH |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MLG 1350 of 2004 |
| Delivered on: | 2 March 2005 |
| Delivered at: | Melbourne |
| Hearing Date: | 2 March 2005 |
| Judgment of: | Riethmuller FM |
REPRESENTATION
| Counsel for the Applicant: | No appearance |
| Counsel for the Respondent: | Mr T.B.M. Mosby |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The applicants’ application filed 20 October 2004 be dismissed.
The applicants do pay the respondent’s costs fixed in the sum of $2,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1350 of 2004
| MZWSE, MZWSF, MZWSG & MZWSH |
Applicants
and
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application by the applicant for judicial review of a decision of the Refugee Review Tribunal (‘the RRT’) of 7 September 2004 in Sydney. The grounds of this application are fairly lengthy and they are in the following terms:
1. The Tribunal has failed to review the decision that was before it (see Section 414 of the Act).
2. The Tribunal has failed to accord the applicants PROCEDURAL FAIRNESS
(a)by asking the 1st named applicant as to who founded the PKK, the name of the popular front of the PKK, the name of the armed wing of the PKK, the date of the launching of the armed struggle of the PKK, the structure of the PKK, the flag of the PKK, the name of the newspaper published by the PKK, the aim of the PKK, the current name of the PKK, the names of the Kurdish dialects, the number of Kurds that live in Turkey, when NEWROOZ is, who LAYLA ZANA is, when was the cease fire announced, which question apart from being irrelevant was garnered from various sources that the Tribunal had access to and expected the applicant to know although not relevant to his claim.
3.The Tribunal has failed to consider the applicants claim in the context in which they were advanced.
4. The Tribunal has failed to consider the applicants evidence in a rational and logical manner.
Particulars
The applicant refers to and repeats the particulars sub joined to paragraph 2 above.
5. The Tribunal has irrationally rejected the evidence presented by concluding that “the applicant has not been truthful about his claim”, “in the light of his complete ignorance of the PKK and Kurds in general”
6. There was no evidence for the rejection of the applicant’s claim.
7. The Tribunal’s finding of the applicant’s wife being a member of a particular social group-namely her family is an erroneous interpretation of the decision cited by the Tribunal in so concluding.
8. The Tribunal’s finding that “the applicant wife has not been of any adverse interest to the Turkish authorities in the past, nor would be of any adverse interest to the authorities in the reasonably foreseeable future in Turkey” is a finding in the absence of evidence.
9. The Tribunal has failed to understand its role in the context of the applicants claim in the light of the Convention and Protocol.
Whilst the grounds are lengthy, the substance of them appears to be a complaint with respect to the fact‑finding process of the RRT. However, the RRT ultimately concluded that it was not satisfied that the applicant had ever been remotely involved in any Kurdish political activity and was not satisfied that he had ever been a member of the PKK. The RRT specifically stated:
It is clear from the applicant’s evidence at hearing that his knowledge of the PKK and of Kurds in general is utterly negligible, and in light of his complete ignorance of the PKK and Kurds in general, the Tribunal finds that the applicant has not been truthful about his claims.
It is not satisfied that the applicant has ever been remotely involved in any Kurdish political activity and it is not satisfied that he has ever been a member of the PKK. It cannot be satisfied that the applicant has ever participated in PKK demonstrations or that he carried out any activities for them.
Given the grave adverse findings on the applicant’s credibility in regard to his claimed membership of the PKK — namely, that the Tribunal does not believe he was ever involved with the PKK in any manner whatsoever, the Tribunal cannot be satisfied that the applicant was detained in May 1995 as claimed, or that he has subsequently ever been of any interest to the Turkish authorities. The Tribunal finds that the applicant’s claims are a fabrication designed to construct a claim for refugee status.
The Tribunal notes that the applicant arrived in Australia in 1996. He gave evidence at his hearing that he left Turkey in fear of his life. However, he waited seven years before making his application for a protection visa. As Heerey J noted in Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347, it is legitimate to take into account an applicant’s delay in lodging an application for a protection visa in assessing the genuineness, or at least the depth, of the applicant’s claimed fear of persecution. The fact that the applicant waited seven years before seeking protection gravely undermines his claim to have been “in fear of his life”, and further undermines his credibility as a witness.
The Tribunal is not satisfied that the applicant has ever been remotely involved in Kurdish political activity of any sort, and it cannot be satisfied that the applicant has a well founded fear of harm for reason of his political opinion in the reasonably foreseeable future in Turkey.
…
The applicant wife has not claimed and there is no evidence whatsoever to suggest that she has ever been invoked in political activities herself. The applicant wife’s fear of harm derived from her familial relationship with the applicant - she is his wife and is part of “the family”. The Tribunal made findings above that it is not satisfied that the applicant is credible. It had found above, that the applicant has not been in the past, nor will be in the reasonably foreseeable future, of any adverse interest to the Turkish authorities. Likewise, the Tribunal cannot be satisfied that the applicant wife has been or any adverse interest to the Turkish authorities in the past, nor would be of any adverse interest to the authorities in the reasonably foreseeable future in Turkey. The Tribunal is not satisfied that the applicant wife has a well founded fear of harm for reasons of her membership of a particular social group - her family.
The RRT’s finding appears entirely based on credit. A merits review is not available by way of judicial review for jurisdictional error.
The matter was before Registrar Mussett in November 2004, at which time the Registrar made directions for the filing of any amended application with proper particulars and facts and contentions to be filed and served by 11 January 2005. The applicant and/or his wife have taken no steps to comply with those orders.
They have been served with the application with respect to dismissing the claim that was filed and returnable today and have not attended at court.
On the material as filed it is difficult to see that the applicant has a proper basis for judicial review. The applicant is not participating in the process in the manner directed, nor has the applicant attended today.
In the circumstances I therefore dismiss the application and order that the applicant pay the respondent's fixed costs of $2,500.00, having regard to the stage of the matter and the relevant scales.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
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