VUAV v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 The appellant, a citizen of Ukraine, 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 applicant claimed to have a well-founded fear of persecution by reason of his political opinion. However, the RRT found that there were discrepancies between the appellant's original claims in his visa application form and his claims in his review application to the RRT. Further, the RRT found the appellant's answers to questions about the discrepancies to be 'vague and unconvincing.' In the result, the RRT did not believe the appellant's claim that he had been subject to persecution for a Convention reason and was not satisfied that the appellant would be persecuted for his political opinion if he were to return to Ukraine. 3 The FMC rejected the application for review of the RRT's decision. The FMC stated: 'It was apparent that the Applicant took issue with the findings of fact by the Tribunal and sought to have this Court conduct an impermissible review of the Tribunal's decision on its merits. The Tribunal's decision, on the face of it, did not disclose a jurisdictional error. It was open to the Tribunal to make the findings it did on the evidence, including the adverse finding on the Applicant's credit. … The Applicant attempted to re-agitate the evidence and sought, in effect, an impermissible merits review of the Tribunal's decision. The Applicant was unable to point to any jurisdictional error by the Tribunal, nor could I find one. In the circumstances, the Application filed on 13 November 2003 should be dismissed.' 4 In this proceeding, orders were made by consent that the appellant file and serve an outline of submissions on or before 4 March 2005. The appellant has not filed and served any such outline. At the hearing, the appellant was unable to advance any basis for this Court to find jurisdictional error on the part of the RRT. He made certain claims about the RRT not considering material that he sent to it but was unable to point to any document which sets out his complaint about that matter. I informed the appellant that the present matter is an appeal from the decision of the FMC and that I propose to rely only on the evidence and material in the Court Books, which make no reference to the appellant's complaint. 5 The findings of the RRT 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 The FMC considered the RRT's decision, and found that jurisdictional error had not been established. I have considered the decision of the RRT and the FMC and have been unable to discern any error on their part. Accordingly, the appellant has failed to establish that any error was made by the FMC or the RRT. 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 information in the appellant's visa application. As explained above, one of the RRT's reasons for rejecting the appellant's application for review was that there were discrepancies between the information provided in the appellant's visa application form and his claims before the RRT. 8 If I was of the view that there was any substance in the s 424A issue, I would adjourn the appeal and make a pro bono referral under Order 80 of the Rules. However, I have formed the view that there is no substance in the s 424A issue. The reasons for that conclusion are as follows. 9 In the circumstances of the present case, s 424A(1) required the RRT to give notice to the appellant, and invite his comment upon, the information in his visa application form provided that it was not given by the appellant for the purpose of his application for review: see s 424A(3)(b) and Minister for Immigration & Multicultural Affairs v Al Shamry (2001) 110 FCR 27. 10 However, as was pointed out by Gray J in M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 at [25], if an applicant for review in, or as part of, the application for review relies upon information provided by the applicant in, or as part of, the application for a visa, the applicant will be taken to have given that information for the purpose of the application for review. As is apparent from the decisions in SZFKL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 931 and NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744, views may differ on whether that criterion has been satisfied in a particular case. 11 In the present case the criterion has been satisfied. In the appellant's application for review, in giving his reasons for making the application, the appellant stated, inter alia: 'PLEASE REFER TO MY PREVIOUS STATEMENT FOR FURTHER INFORMATION.' 12 It is clear from the Court Book and from the answers given by the appellant to questions I asked of him that: (a) the only 'previous statement' made by him was the information he provided in his visa application; and (b) the reference by the appellant to his 'previous statement' was a reference to information he provided in, or as part of, his visa application. 13 Accordingly, the information from the appellant's visa application that was part of the reason for the RRT's decision was information given by the appellant for the purpose of his application for review and therefore the RRT was not required by s 424A(1) to specifically inform the appellant of, and invite the appellant to comment upon, that information: see s 424A(3)(b). 14 In the circumstances, it is not appropriate to adjourn the appeal and make a pro bono referral in respect of the s 424A issue. 15 The appeal is to be dismissed with costs. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel.