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MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection visa.

MZWCX v Minister for Immigration [2004] FMCA 938 (21 September 2004)

MZWCX v Minister for Immigration [2004] FMCA 938 (21 September 2004)
Last Updated: 22 December 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZWCX v MINISTER FOR IMMIGRATION
[2004] FMCA 938




MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection visa.




Migration Act 1958 (Cth)

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

Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287

Applicant:
MZWCX




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


MLG 141 of 2004




Delivered on:


21 September 2004




Delivered at:


Melbourne




Hearing Date:


21 September 2004




Judgment of:


Riethmuller FM




REPRESENTATION

Counsel for the Applicant:


The applicant appeared on his own behalf




Counsel for the Respondent:


Mr W.G. Gilbert




Solicitors for the Respondent:


Blake Dawson Waldron




ORDERS

(1) The applicant's application filed on 10 February 2004 be dismissed.

(2) The applicant do pay the respondent's costs fixed in the sum of $6,500.00.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

MELBOURNE



MLG 141 of 2004

MZWCX



Applicant

and

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT

1. This is an ex tempore judgment.

2. The applicant in this case is a 36-year-old man born in Teheran. He is of Kurdish ethnicity and adheres to the Islamic faith. He came to Australia in February 2001 on a temporary business visa and lodged an application in March 2001 for a protection visa. His application for a protection visa was refused on 16 April 2002. He then applied for a review before the Refugee Review Tribunal (`the RRT') on 20 May 2002.

3. The applicant attended a hearing at the RRT on 2 December 2003 where he gave evidence. At the time he was represented by a solicitor from Legal Aid. In this case the applicant relies upon a letter that he provided to the RRT as demonstrating proof of his claims. Whilst a copy of the original letter in Persian was not in the court book, a copy of it was tendered at the hearing and marked exhibit `1'. It is clear that that letter was before the RRT. It is also clear from the court book that the RRT had a translation of the letter into English for them to consider. The RRT discussed the letter and the evidence of the applicant with relation to the letter and his claims in some detail at pages 21 and 22 of their decision. In substance, the RRT did not believe the applicant. The RRT formed that view after reviewing all of the written material, seeing the letter and a translation of the letter, hearing directly from the applicant and seeing the applicant.

4. The applicant cannot point to anything about the process of the hearing to show an error on the part of the RRT. He was given notice that the RRT would be considering his matter. The RRT looked at his material and gave him an opportunity to speak to the tribunal directly. The decision that the RRT reached was open on the evidence before the RRT. Having read the decision, it could not be said that the conclusion the RRT reached was fanciful or absurd or not reasonably open.

5. The Full Court of the Federal Court in Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 observed that there is not an error of law when the RRT makes findings on credibility issues which were open to the RRT on the material before it. This is a well-known principle of law. A similar example appears in Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287. I am not satisfied that this issue is a ground upon which the RRT 's decision should be overturned.

6. The second matter relates to the documents that the applicant (by his solicitor) sent to the RRT and the RRT's reference to other country information. I find that the applicant cannot succeed on this basis for two reasons. First, it appears that the RRT did have regard to the material forwarded by the applicant and it is well established that the RRT may have regard to country information of the type that they looked at in this case. Secondly, the applicant confirmed to the RRT that he did not fear persecution on the basis of his ethnicity.

7. I do not think that a fair reading of the decision by the RRT would allow one to conclude that it had misused the country information. Rather, the RRT has made a finding with respect to the specific issues and the specific person.

8. The only other matter raised by the applicant was the general complaint that the RRT did not believe him. I do not have power to review the RRT's decision as to whether or not it believes somebody unless the decision could not be supported by the evidence before it or there is some error of logic in the reasoning process or some other error in the process such as failing to look at documents he sent in or failing to listen to him when he came for an interview.

9. I therefore dismiss the application.

10. In proceedings such as these costs normally follow the event, which is a shorthand way of identifying that the outcome of the case is a particularly significant factor in determining the exercise of the discretion to order one or the other party to pay the other side's costs. In this case the applicant refers to his lack of finances and the financial difficulty he will have in meeting the costs order. There is nothing else put before me to consider in terms of the exercise of the discretion as to who should pay costs or the amount of those costs.

11. On the material I am satisfied that a costs order would be appropriate in this type of litigation given the outcome. I order that the applicant pay the respondent's costs. I have regard to the scale in the Federal Magistrates Court and the type of work that has had to be done in a case such as this and in this particular case at least so far as appears from the court file. I find that the sum sought of $6,500.00 is reasonable and I order that costs be fixed in the sum of $6,500.00.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Riethmuller FM

Associate:

Date:
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