MZWCL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 635

FEDERAL COURT OF AUSTRALIA

MZWCL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 635 MIGRATION – appeal from decision of Federal Magistrate – jurisdictional error – appellant claimed fear of persecution for political activities – Refugee Review Tribunal accepted some claims of assault, property damage and threats – Tribunal found no fear of future harm amounting to persecution – Tribunal held State-protection available – whether Tribunal misinterpreted the terms "well-founded fear" and "persecution". APPLICATION – leave to amend Notice of Appeal – journal article joint authored by presiding Tribunal member – article published after decisions of Tribunal and Federal Magistrate – article argued that State-sanctioned torture was morally justifiable in some circumstances – reasonable apprehension of bias – different notion of persecution than that required by law – whether new grounds of appeal had reasonable prospect of success.

Held (on appeal): Tribunal's evaluation of threats made and past harms in finding no persecution – revealed no jurisdictional error – State protection available in the circumstances in any event. Held (on application for leave): Content of journal article incapable of firmly establishing reasonable apprehension of bias – insufficient connection between the views expressed and the issues determined in the Tribunal – no demonstrable error in Tribunal's definition of refugee – no reasonable prospect of success. Migration Act 1958 (Cth) s 36

Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 applied SZDWR v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 36 cited VDAU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 32 applied Raheem v Minister for Immigration & Multicultural Affairs [2001] FCA 940 cited VBAS v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 216 ALR 307 applied Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 applied M66 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 112 applied Ratnayake v Minister for Immigration & Multicultural Affairs [1998] FCA 1141 applied Applicant A233 of 2003 v Refugee Review Tribunal [2004] FCA 666 cited Das v Minister for Immigration & Multicultural Affairs (2004) 208 ALR 229 referred to Minister for Immigration & Multicultural & Indigenous Affairs v Respondent S152/2003 (2004) 205 ALR 487 applied SZBOT v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 411 cited Applicant VFAH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1018cited O'Brien v Komesaroff (1982) 150 CLR 310 applied Iyer v Minister for Immigration & Multicultural Affairs [2000] FCA 1788 applied NAJT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 134 cited Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka (2001) 206 CLR 128 referred to Webb v R (1994) 181 CLR 41 followed R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 applied Re JRL; ex parte CJL (1986) 161 CLR 342 applied