MZWEA v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 97

FEDERAL COURT OF AUSTRALIA

MZWEA v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 97

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 MZWEA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS VID 1501 OF 2004 MERKEL J 18 FEBRUARY 2005 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY 1501 OF 2004

BETWEEN: MZWEA

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 1501 OF 2004

BETWEEN: MZWEA

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 is a citizen of Bosnia and Herzegovina of Serbian ethnicity. He applied on behalf of his wife and their two children for protection visas on the basis 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"). The appellant claims to be a refugee because he has a well-founded fear of persecution for a Convention reason if he were to return to Bosnia and Herzegovina. 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 The FMC summarised the background facts as follows: "2. The Applicant is a 31 year old male citizen of Bosnia and Herzegovina and is of Serbian ethnicity. His wife is 30 years old and a citizen of Yugoslavia of Serbian ethnicity. 3. The Applicant resided in Bosan[s]ki Petrovac in Bosnia and Herzegovina from birth in 1973 until May 1992. The Applicant has given various conflicting accounts about where he lived between June 1992 and May 1998. However, it is evident the Applicant and his wife lived in Moscow, Russia from 6 June 1998 until 24 December 2000, when he departed for Australia, arriving on 26 December 2000. His first daughter was born in Russia in 1998. His second daughter was born in Australia in March 2001. 4. The Applicant, his wife and first daughter entered Australia on Yugoslavian passports and visitor visas issued by the Australian Embassy in Moscow. 5. On 2 February 2001, the Applicant applied to the Respondent's Department for a protection visa. The Applicant's wife and their first daughter were included in his application as members of his family and did not make independent claims for refugee status. 6. The RRT determined that the Applicant was not a person to whom Australia has protection obligations under the Status of Refugees Convention as amended by the Refugees Protocol; that the Applicant does not satisfy the criterion set out in s.36(2) of the Migration Act 1958 (the Act). In making that determination the RRT made various findings, some of which were that the Applicant was not a credible witness, his evidence was inconsistent and evasive, and was 'inherently unconvincing'. The RRT rejected the Applicant's submission that he feared persecution by the Bosnian Serb authorities or ethnic Serbs in Bosnia and Herzegovina and also rejected the claim that he would also be persecuted by Muslims in Bosan[s]ki Petrovac for reasons of his involvement in military action against them. It is evident on reading the RRT decision that the credibility of the Applicant loomed large in its determination." 3 The appellant's contentions before the FMC primarily related to factual issues. The conclusions of the FMC were stated as follows: "15. The Applicant's contentions that the RRT failed to consider authoritative and direct evidence cannot be substantiated. The credibility of the Applicant was a significant consideration by the RRT's and much of this review relied on a challenge, in effect, to the RRT's assessment of his credibility. Having found the Applicant not to be credible and having made findings rejecting his evidence, after considering other evidence that supports the RRT's ultimate decision, the RRT made a decision, in my view, free from error. 16. I cannot find a basis for concluding that the RRT has erred in any manner that would devoid the protection of the decision afforded by s.474 of the Act. I find that the RRT did not make a 'jurisdictional error'. Accordingly, the application filed on 16 March 2004 should be dismissed". 4 The appellant was legally represented before the FMC but was not legally represented on his appeal to the Court. His grounds of appeal were stated as follows: "2. The learned Magistrate erred in failing to give adequate consideration to the evidence presented by the Appellant to the Refugee Review Tribunal and, instead accepted without question that the Appellant was '…not a credible witness and his evidence was inconsistent and evasive and was inherently unconvincing'. This is especially obvious in paragraph 6 [six] of the Reasons for Judgment of the learned Federal Magistrate. 3. The decision of the learned Federal Magistrate is a denial of natural justice." 5 In his written submissions the appellant alleged that certain errors were made by the RRT in relation to factual matters but, as was pointed out by the respondent, the appellant's written submissions seek to re-agitate factual findings that were decided adversely to the appellant by the RRT and were determined by the FMC to have been open to the RRT on the material before it. In my view the submissions do not reveal any appealable error on the part of the FMC. 6 The difficulty confronting the appellant is that the RRT's adverse credibility findings were critical to the RRT's ultimate finding that he did not have 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 provides a rational basis for not accepting the appellant's claims and relies upon matters that are logically probative of the issues it is determining: see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 552 and 559. 7 The appellant's contentions on the appeal sought to re-agitate factual issues. In substance, his complaint is that the RRT ought not to have rejected his credibility and ought not to have made certain other adverse factual findings that were fatal to his claim. 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. As explained above, I accept the respondent's submissions that the findings made by the RRT were open to the RRT on the material before it. The FMC carefully considered the appellant's contentions, put on his behalf by his counsel, and found that jurisdictional error had not been established. I am not satisfied that any legal or other error was made by the FMC. The appellant's Notice of Appeal also sought to rely on a denial of natural justice on the part of the FMC. I am not satisfied that there is any proper basis for that ground of appeal. 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.