MZWDB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 96

FEDERAL COURT OF AUSTRALIA

MZWDB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 96

MIGRATION – appeal – adverse credibility finding – no error

Convention Relating to the Status of Refugees 1951 as amended by the Protocol Relating to the Status of Refugees 1967 Art 1A(2)

Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 168 ALR 407 - cited Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 - cited MZWDB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS VID 1385 OF 2004 MERKEL J 18 FEBRUARY 2005 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 1385 OF 2004

BETWEEN: MZWDB

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT JUDGE: MERKEL J

DATE OF ORDER: 18 FEBRUARY 2005

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. The appeal is dismissed. 2. The appellant pay the respondent's costs of and incidental to the appeal.

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

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 1385 OF 2004

BETWEEN: MZWDB

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MERKEL J

DATE: 18 FEBRUARY 2005

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 The appellant, a citizen of India, applied for a protection visa claiming that he is a refugee as defined by Art 1A(2) of the Convention Relating to the Status of Refugees 1951 as amended by the Protocol Relating to the Status of Refugees 1967 ("the Convention") because he has a well-founded fear of persecution for a Convention reason if he were to return to India. His application was refused by a delegate of the respondent and the refusal was affirmed by the Refugee Review Tribunal ("the RRT"). The appellant then applied unsuccessfully to the Federal Magistrates Court ("the FMC") to review the decision of the RRT. He has now appealed to the Court against the dismissal by the FMC of his application for review. 2 Before the RRT the applicant claimed to have a well-founded fear of persecution. His claim was based upon certain events, which he said had occurred in relation to a leather goods shop that he owned and operated in a bazaar in a predominantly Muslim area of Mumbai. He claimed that he was the victim of criminal extortion by some gangsters ("the Mumbai Mafia"). He also claimed to have been the victim of harassment, intimidation and violence by officers of the Mumbai police force, which he stated was based on false allegations that he had some connection with the Mumbai Mafia, and because he is a Muslim. 3 The RRT found that the appellant was not a credible witness and that significant aspects of his written and oral evidence were inconsistent and implausible. In the result, the RRT did not believe the appellant's claim that police officers had harmed the appellant for any reason, or that anyone, including the Mumbai Mafia, had sought to mistreat him because of his religion or for any other Convention reason. Accordingly, the RRT was not satisfied that the appellant had a well-founded fear of persecution for religious reasons by the police or members of the Mumbai Mafia upon returning to India. 4 Before the FMC the appellant sought to re-agitate the facts of his case and sought an impermissible merits review. The FMC found that the finding on credibility was open to the RRT on the evidence before it, and could find no jurisdictional error on the face of the RRT's decision. The conclusions of the FMC were stated as follows: "3. The Tribunal in this case made findings of fact which included, in part, a finding that the Applicant was not a credible witness. This was [determinative] of the Applicant's case for a protection visa. The Tribunal went on to make specific findings that some of the statements made by the applicant were, indeed, not accepted by the Tribunal. Based on those findings, the Tribunal upheld the delegate's determination to refuse to grant a protection visa. 4. Notwithstanding the fact that the Applicant, who was unrepresented, was unable to present the necessary legal arguments to support a finding by this Court that the Tribunal had erred, I have carefully examined the decision of the Tribunal with a view to ascertaining whether, on the face of it, a jurisdictional error by the Tribunal is apparent. I could not [find] one." 5 The appellant was not legally represented before the FMC or in his appeal to the Court. The appellant told the Court that he had prepared his Notice of Appeal based on the applications of some of his friends. The appellant's grounds of appeal seek to re-argue the merits of his case and also raise matters that appear to be unrelated to his appeal. For example, the Notice of Appeal sought to rely on a claim that the appellant is a refugee "sur place". I am satisfied that there is no proper basis for that ground of appeal. 6 The difficulty confronting the appellant is that the RRT's adverse credibility findings proved to be fatal to his claims of having a well-founded fear of persecution for a Convention reason. The findings are essentially findings as to whether the appellant should be believed in his claims, which are findings on credibility. Such findings were referred to by McHugh J in Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 168 ALR 407 at 423 [67] as "the function of the primary decision-maker par excellence" and, while not invulnerable to review, are difficult to overcome. That is particularly so where, as has occurred in the present case, the RRT provided a rational basis for not accepting the appellant's claims and relied upon matters that were logically probative of the issues it was determining: see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 552 and 559. 7 On the appeal the appellant failed to file any written submissions. His complaint is that the RRT ought not to have rejected his credibility. The Court's role, however, is not one of merits review. I have considered the decision of the RRT and have been unable to discern any jurisdictional error on its part. The FMC carefully considered the appellant's contentions, and the RRT's decision, and found that jurisdictional error had not been established. I am not satisfied that any legal or other error was made by the FMC. It must follow that the appeal is to be dismissed with costs. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel J.