VWLB v Minister for Immigration
[2005] FMCA 1416
•28 July 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VWLB v MINISTER FOR IMMIGRATION | [2005] FMCA 1416 |
| MIGRATION – Impermissible merits review. |
| Migration Act 1958, s.474 |
| Applicant: | VWLB |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 1146 of 2004 |
| Judgment of: | O'Dwyer FM |
| Hearing date: | 28 July 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 28 July 2005 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Ms. S.A. Burchell |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
Pursuant to Rule 16.05 of the Federal Magistrates Court Rules 2001 the Order of this Court made on 12 July 2005 is set aside.
Upon the hearing of the Applicant's Application filed on 7 June 2005 that application is dismissed.
The Applicant pay the Respondent's costs fixed in the sum of $9,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1146 of 2004
| VWLB |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This proceeding comes before me on an application filed by the Applicant on 7 June 2004 in which he seeks to set aside an order of the Refugee Review Tribunal made on 5 April 2004. That Tribunal decision affirmed an earlier decision made by the Respondent's delegate to refuse the Applicant a protection visa.
The grounds specified in the Application for Review are as follows:
“1.In affirming the decision of a delegate of the Respondent not to grant the Applicant a protection visa (Class XA), the Tribunal constructively failed to exercise its jurisdiction.
Particulars
i) The Tribunal failed to properly construe a well-founded fear of persecution, and;
ii) The Tribunal wrongly construed the meaning of persecution.”
Pursuant to procedural orders the Applicant was required to file and serve by 4 February 2005 his Contentions of Fact and Law. Presumably, in response to that requirement, on that day the Applicant faxed to the court a document which repeated the ground stated in his Application for Review and thereafter added the following:
“An Applicant must be unable or unwilling, because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if state-less, unable or unwilling because of his or her fear to return to his or her country of former habitual residence. Whether an Applicant is a person to whom Australia has protection obligations is to be assessed upon the facts that exist when the decision is made, and requires a consideration of the matter in relation to the reasonably foreseeable future.
Claims: The member of the Tribunal wrote:
“Even if I accept that the Applicant may face problems with the squatters who took over his father's land if he returned to Thika, I believe that he could avoid these problems by remaining in Nairobi where he lived prior to leaving to study in Australia”.
I believe I didn't live in Nairobi but I did study in a boarding school in Nairobi.”
In his submissions given verbally here today, the Applicant has fixed upon what he sees as the principal error of the Tribunal in its decision. He has drawn issue with the Tribunal's finding that he lived in Nairobi in circumstances where in fact he was boarding at a school. He asserts that he lived on his father's land and the Tribunal decision, because of the finding of fact that he lived in Nairobi, is one that in his mind is seriously affected with error.
He went on to say too, that the Tribunal failed to take into account the fact that the ethnic group who have taken over his land constitute more than 50 per cent of the population of Kenya and that he is precluded as a consequence from living elsewhere in Kenya because of the prevalence of that ethnic group. He states that he would be at risk of harm if he was to be forced to return to Kenya to live.
It is evident, in my view, from the Applicant’s written and verbal contentions, as limited as they are, that he seeks, in effect, a merits review of the decision of the Tribunal. It is trite to say that this court does not have the jurisdiction to enter into a merits review and that such a review is considered impermissible.
I have read the Tribunal's decision and I have also read the contentions of fact and law provided by the Respondent. In my view the Respondent's contentions of fact and law correctly set out the facts and law applicable in this case and the conclusions drawn by the Respondent, and urged upon this court, are the correct conclusions to be drawn.
The question of the Tribunal being in error in finding the Applicant lived in Nairobi may simply be a matter of sematic debate. But assuming for the sake of argument that it was an error, I am not satisfied that it is an error that affected jurisdiction. Indeed, if it is an error of fact, it is clearly one within jurisdiction and is not reviewable by this court.
In respect of the question of the Applicant’s capacity to relocate, the Tribunal was cognisant of this issue and made findings of fact that he could do so without fear of persecution in his new locale. In coming to that conclusion the Tribunal was mindful of the ethnic make up of Kenyan society and the potential for ethnic conflict. The Tribunal concluded that the Applicant was not at risk because of his ethnicity and could relocate in Kenya without the fear of persecution. A finding open to the Tribunal.
In my view, the decision of the Tribunal was one that was open to it on the evidence presented and the Tribunal's reasoning exhibited probative logic. I cannot find any jurisdictional error after critically examining the decision.
The decision is a privative clause decision and is afforded protection under s.474 of the Migration Act. Accordingly, in the circumstances, I have no alternative but to dismiss the Applicant's application for review.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of O’Dwyer FM
Associate:
Date: 28 July 2005
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