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MIGRATION - Refugee Review Tribunal - privative clause decision - protection visa.

MZWEA v Minister for Immigration [2004] FMCA 810 (19 November 2004)

MZWEA v Minister for Immigration [2004] FMCA 810 (19 November 2004)
Last Updated: 26 November 2004


[2004] FMCA 810

MIGRATION - Refugee Review Tribunal - privative clause decision - protection visa.

Migration Act 1958, ss.36(2), 91R(2), 474

SFGB v Minster for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

NAYQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 365




File No:

MLG 278 of 2004

Delivered on:

19 November 2004

Delivered at:


Hearing date:

29 September 2004

Judgment of:

O'Dwyer FM


Counsel for the Applicant:

Mr Gibson

Solicitors for the Applicant:

AMPI Trading Pty Ltd

Counsel for the Respondent:

Mr Heerey

Solicitors for the Respondent:

Blake Dawson Waldron


(1) The application filed on 16 March 2004 is dismissed.




MLG 278 of 2004







1. By an application filed on 16 March 2004 the Applicant seeks to review the decision of the Refugee Review Tribunal (the RRT) made on 23 January 2004 to affirm the decision of the Respondent's delegate made on 6 March 2001 not to grant a protection visa to the Applicant.


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 Bosanki 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 Bosanki 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.

Applicant's contentions

7. The Applicant contends that there has been jurisdictional error on the part of the RRT which, as a consequence, does not afford the RRT's decision the protection it would otherwise have as "a privative clause decision" under s.474 of the Act.

8. It is contended that the RRT made findings and conclusions unsupported by evidence or country information. In that regard, the Applicant relied on the decision in SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231 where the Full Court of the Federal Court (Mansfield, Selway and Bennett JJ) stated:

"19...If the Tribunal makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding then this may well constitute a jurisdictional error: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-357. If the decision of the Tribunal was �Wednesbury' unreasonable or if the material on which the Tribunal relied was so inadequate that the only inference was that the Tribunal applied the wrong test or was not, in reality, satisfied in respect of the correct test, then there would also be jurisdictional error: see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 (�S20') at 62, 67, 76, 90-91."

9. The Applicant challenges the findings and conclusions reached by the RRT that the Applicant would not be persecuted by Muslims in Bosanki Petrovac for reasons of his Serb ethnicity, his (imputed) political opposition to Muslims or his membership of any particular social group defined in relation to Serb ethnicity. It is contended that these findings and conclusions either lacked the support of probative evidence, or ignored evidence to the contrary.

10. The Applicant contended that the RRT ignored "authoritative material", and the direct evidence of the Applicant. It is clear, in my view, from the RRT's decision that such material was considered, but given little, if any, weight. It is also clear that the RRT rejected the evidence of the Applicant as lacking credibility. The evidence of the Applicant was self serving and not independent. The RRT found that the Applicant had not lived in Bosanki Petrovac for 12 years, and therefore could not give direct evidence of what the current situation is there now. The RRT evaluated, on the face of it, this evidence and manifestly rejected the claim as lacking authority. For this Court to challenge the RRT findings in these regards amounts to a review on the merits, which this Court clearly is unable to do (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Grummow JJ).

11. The Applicant also contended that the RRT erred by finding that the absence of the matters relied on by the Applicant in Country Reports supported the proposition that such risks do not exist. The Applicant again refers to the positive evidence proffered by him to support the proposition that they do exist. This contention, for it to have legs, presupposes the credit of the Applicant as being sound and that he was in a position to give that evidence. This was not the finding of the RRT. Again this contention, in my view, invites this Court to embark on a merits review of the RRT's decision.

12. In any event, there was positive evidence before the RRT that contradicted the assertion by the Applicant that he faced risk if he was to return to Bosanki Petrovac. That evidence spoke of Bosanki Petrovac as being a promising municipality, that "the international community saw it as a pro-minority return area and the current population as demonstrating the potential for acceptance and reconciliation" (CB 142.6-8) and "one municipality, Bosanki Petrovac, is unique in both its ethnic and political character, with Serbs becoming a growing majority, as they return to their pre-war homes.

The municipality has a Serb Mayor, a Bosniac deputy-mayor and a Bosniac speaker of the assembly" (CB 143.1-2). The RRT gave favourable weight to that evidence in contradistinction to that proffered by the Applicant. Such findings of fact are beyond the jurisdiction of this Court to review. Because there was positive evidence to support the RRT's findings of fact, this matter is readily distinguished from that considered in SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231 (supra) and NAYQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 365.

13. The RRT's findings are based upon positive evidence before it and such findings are clearly open to it. It is not tenable, therefore, to contend, as the Applicant does, that there was no evidence, or in the alternative, that the RRT applied the wrong test.

14. The Applicant further contended that the RRT did not deal with the Applicant's claims of persecution by reason of "denial of capacity to earn a livelihood of any kind, where the denial threatens the persons capacity to subsist" (see s.91R(2)(f) of the Act). Although this issue was raised in the evidence, it was argued that the RRT was required to address it; which, it was said, it did not. It is not my understanding, however, that the decision did not addressed the issue. It is clear from the decision that it was taken into account (see CB 136.4) and a finding of fact was made by the RRT. This contention is without foundation.


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 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

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of O'Dwyer FM


Date: 19 November 2004
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