Nyoni, Clever Emison v Minister for Immigration and Multicultural Affairs

[1998] FCA 1651

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIAN  DISTRICT REGISTRY	VG 234 of   1998

BETWEEN:

CLEVER EMISON NYONI

APPELLANT

AND:

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGES:

FRENCH , NORTH AND MERKEL JJ

DATE OF ORDER:

 24 NOVEMBER 1998

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1. The appeal is dismissed.

2. The appellant pay the respondent’s costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIAN  DISTRICT REGISTRY	VG 234  of 1998

BETWEEN:

CLEVER EMISON NYONI

APPELLANT

AND:

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGES:	FRENCH, NORTH AND MERKEL JJ
DATE:	24 NOVEMBER 1998
PLACE:	MELBOURNE

EX TEMPORE REASONS FOR JUDGMENT

THE COURT:

This is an appeal from a decision of his Honour, Finkelstein J, given on 19 May 1998 in which he dismissed an application under s 476(1) of the Migration Act 1958 (Cth) for review of a decision of the Refugee Review Tribunal. That decision had affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs that the appellant, Clever Emison Nyoni, a national of Zimbabwe, is not entitled to a protection visa.

The facts of the case are set out adequately in the judgment of his Honour at first instance and it is unnecessary to repeat them now.  In his grounds of appeal, which appear at p 82 of the Appeal Book, Mr Nyoni specifies as his grounds:

“(1)  THE DECISION OF THE REFUGEE REVIEW TRIBUNAL OF 25 NOV. 1996 INVOLVED AN ERROR OF LAW.  (2)  THE DECISION WAS INDUCED OR AFFECTED BY ACTUAL BIAS  (3)  THERE WAS NO EVIDENCE OR OTHER MATERIAL TO JUSTIFY THE DECISION.  JUDGEMENT BY JUSTICE FINKELSTEIN OF 19 MAY 1998 FAILED TO RECOGNISE THAT THE APPELLANT IS A PERSON WHO SATISFIES THE CRITERIA SET OUT IN SECTION 36(2) OF THE MIGRATION ACT 1958.”

The orders sought were an order setting aside the judgment of Finkelstein J and that costs orders made pursuant to that judgment on 19 May also be set aside. A declaration was sought that the appellant is a person who satisfies the criteria set out in s 36(2) of the Migration Act.  Mr Nyoni has provided the Court with written contentions of fact and law in support of his appeal.  In addressing us this afternoon he has indicated that he relies upon those written submissions and does not seek to elaborate them.

In brief summary, those submissions involve the following propositions:

1.That Finkelstein J failed to recognise that the threats made to the appellant were within the concept of persecution.

2.That his Honour did not recognise the nature of political activity documented by the appellant.

3.That his Honour erred in failing to recognise that persecution could be for a number of reasons.  We interpolate in this case that the finding was that the persecution alleged actually related to a family dispute.  His Honour, it is said, erred in failing to recognise that the evidence established that the circumstances in the particular case amounted to persecution and failed to appreciate that death threats made on the basis of the appellant’s political activity amounted to persecution for a convention reason.

4.It is said his Honour failed to properly apply the test as to what amounts to persecution.  The nature of the appellant’s fear as a well-founded fear was not accepted by his Honour, even after it was said the Tribunal had established that the appellant had a subjective fear of persecution.  His Honour is said to have based his rejection of the appellant’s contentions upon the erroneous findings of the Tribunal, which amounted to error of law as a result of an incorrect application of the law or convention.

The Court has reviewed the reasons of the Tribunal as well as the reasons for judgment of his Honour and, having regard to the detailed submission that the appellant has put before the Court, we are unable to see, in the submissions put by Mr Nyoni, anything that discloses error of law on the part of Finkelstein J.  On proper analysis, the application is in truth an invitation to this Court to engage in review of the factual merits of the Tribunal’s decision, rather than identifying any question of principle which could amount to an error of law within the framework of the review process for which the Migration Act provides.

It has been said on many occasions that in judicial review this Court is not entitled to sit in the seat of the decision-maker, whether that decision-maker be the Tribunal or the relevant delegate.  This Court is not entitled to substitute its own view of the facts for that of the Tribunal.  His Honour, Finkelstein J, has had proper regard to that constraint in the approach that he has taken to his judgment.  Judicial review is essentially concerned, in broad terms, with the lawfulness, the fairness and the rationality of decisions under review.  The present appeal would go beyond that function.  No reviewable error is disclosed and the appeal should be dismissed.  That is the order of the Court.

I certify that this and the preceding two (2) pages are a true copy of the Ex tempore Reasons for Judgment herein of the Court.

Associate:

Dated:             24 November 1998

The Appellant appeared in Person.
Counsel for the Respondent:	Ms M. Kennedy
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	24 November 1998
Date of Judgment:	24 November 1998