FEDERAL COURT OF AUSTRALIA

MZWQE v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1364

MIGRATION — appeal — adverse credibility finding — whether jurisdictional error — whether breach of s 424A

Migration Act 1958 (Cth), s 424A

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 - cited

Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 - cited

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162 - cited

VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004 FCAFC 123 - applied

VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 - applied

Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 205 ALR 487 - cited

MZWQE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

VID 934 OF 2005

MERKEL J

19 SEPTEMBER 2005

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.

REASONS FOR JUDGMENT

1                     The appellant, who is a citizen of Sri Lanka, 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 Opened for signature 28 July 1951. 189 UNTS 150 Art 1A(2). (entered into force 22 April 1954) as amended by the Protocol Relating to the Status of Refugees Opened for signature 31 January 1967. 606 UNTS 267. (entered into force 4 October 1967)  (‘the Convention’).  His application was refused by a delegate of the respondent and the refusal was affirmed by the Refugee Review Tribunal (‘the RRT’).  The appellant 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 appellant claimed to have a well-founded fear of persecution by reason of his religion and political opinion.  The RRT found that the appellant’s evidence regarding the harm he endured ‘to be vague, unconvincing and unsupported by independent evidence.’  In the result, the RRT did not believe the appellant’s claim that the appellant would experience persecution by reason of his religion or political opinion if he were to return to Sri Lanka.

3                     The FMC rejected the application for review of the RRT’s decision.  The applicant failed to attend the FMC hearing, although he did notify the court that he was ill very shortly before the hearing time.  McInnis FM proceeded with the hearing under Rule 13.03(A)(d) of the Federal Magistrates Court Rules.  In determining the application, McInnis FM stated:

‘I am satisfied that the amended application and the contentions relied upon by the applicant do no more than seek to further agitate facts and conclusions reached by the RRT which were reasonably open to the RRT and which are not, in my view, affected by any jurisdictional error.

…

I otherwise accept the submissions made for and on behalf of the respondent that in this instance it could not be claimed that the RRT had failed to take into account either relevant considerations or that it failed to deal with one or more of the claims.  Indeed, a proper reading of the RRT decision in this instance reveals, as I have indicated, a very thorough and detailed analysis of the claims, albeit with adverse findings in relation to the application.  The mere fact that they are adverse findings in relation to the application does not of itself provide any or any proper basis upon which this Court should conclude that there has been an error of a kind which would permit intervention by this court or would justify a finding that there has been jurisdictional error.  I accept as submitted by the respondent that in this instance the RRT dealt with each and every one of the claims made and otherwise drew conclusions which were reasonably open to it on the material then before it and having regard to the claims then made by the applicants.  I am satisfied that there is no basis upon which this Court could conclude that there is jurisdictional error or indeed any error of any kind in the manner in which the RRT has dealt with the claims.’

4                     In his notice of appeal, the appellant claims that the decision of the FMC constituted jurisdictional error and that the FMC erred in not finding that the RRT had made an error going to jurisdiction.  The appellant did not contend that the FMC was in error in proceeding with the hearing in his absence.  The parties were ordered to file written submissions by 12 September 2005.  The appellant did not file any submissions.  At the hearing, the appellant was unable to advance any basis upon which the Court should find that the FMC or RRT fell into error.

5                     In any event, the findings which led to the RRT dismissing the appellant’s application for review 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 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 423 [67] as being ‘the function of the primary decision-maker par excellence’ and, while not invulnerable to review, they 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.

6                     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 RRT’s decision, and found that jurisdictional error had not been established.  I am not satisfied that any error was made by the RRT or the FMC.

7                     At the hearing, counsel for the respondent quite properly indicated to the Court that, on the evidence and material in the Court Book, it might have been argued that the RRT failed to comply with s 424A(1) of the Migration Act 1958 (Cth) in that it failed to give notice to the appellant, and invite the appellant to comment on, the written information provided by the appellant in support of his visa application.  This argument arose from the fact that there are references in the RRT’s reasons for decision to the appellant’s written statement in support of his application for a protection visa.  The RRT relied upon the statement as one factor, amongst a number of other factors, for making certain adverse credibility findings against the appellant.  The Minister appeared to accept that if the information in the appellant’s visa application was part of the reason for the adverse decision of the RRT, s 424A would have been breached with the consequence that the decision of the RRT could be invalid (see SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162).

8                     It is clear from decisions of the Court that s 424A does not apply where the relevant information is regarded as ‘relatively minor and unimportant in the scheme of things’ or where the information ‘was not so integral to the reasoning process rejecting the appellant’s claims as to require as a matter of fairness that the appellant be told that information…and why it was relevant to the review’ (see VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123 (‘VAF’) and VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 (‘VUAX’). 

9                     In the present case, a fair reading of the RRT’s decision makes it clear that any reference by the RRT to inconsistencies or inadequate explanations in the appellant’s written statement in support of his visa application fell within the criteria set out in VAF and VUAX.  The appellant’s claim of religious and political persecution was rejected in substance because of the evidence the appellant gave at the RRT hearing and the failure of independent country information to support any of his claims, rather than because of any prior inconsistent statements by him.  Further, there seems to have been little or no support for any view that any of his claims were based on past or future conduct by state actors (see Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 205 ALR 487, 493 [21]).  Thus, on the reasoning of the RRT, there was no finding of any unwillingness or inability of the State to discharge its obligation to protect the appellant from the religious or political persecution he claimed to fear.

10                  The appeal is to be dismissed with costs. 

Associate:

Dated:              19 September 2005