FEDERAL COURT OF AUSTRALIA

MZYAB v Minister for Immigration & Citizenship [2008] FCA 1744

MZYAB v MINISTER FOR IMMIGRATION & CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

VID 698 of 2008

SUNDBERG J

20 NOVEMBER 2008

MELBOURNE

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the first respondent’s costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                     The appellant appeals from the decision of the Federal Magistrates Court dismissing his application for review of the Refugee Review Tribunal’s affirmation of the first respondent’s delegate’s refusal of a protection visa.

2                     The background to the appellant’s case and his claims are set out in the Magistrate’s reasons for decision and in more detail in the Tribunal’s reasons. It is not necessary to repeat them.

3                     The appellant’s notice of appeal asserts errors on the part of the Tribunal. I will treat it as asserting errors on the part of the Magistrate in not upholding his claims of Tribunal error.

4                     The first complaint is that:

The [T]ribunal says that even if the family did make threats of one kind or another, the [T]ribunal notes that threats to life or liberty in the form of declarations of intent cannot, without more, constitute serious harm.

It is not necessary to deal with this complaint. The words “even if” disclose that the Tribunal did not accept the appellant’s claim that Ms Selvanayagam’s family threatened to kill him because of his relationship with her. Accordingly the Tribunal’s fall back position is neither here nor there.

5                     The second complaint is that there was no evidence or proper basis for the Tribunal to find that the appellant was not involved in election related activities on behalf of the United National Party (UNP). The appellant has misunderstood what the Tribunal said. It did not find that he was not involved in election related activities on behalf of the UNP. Rather it concluded that he had not been persecuted because of that involvement. The Magistrate correctly so held.

6                     The third complaint is that the Tribunal gave no reasons as to why it rejected the appellant’s evidence about the dance activities he performed on behalf of the UNP. Again the appellant has misread what the Tribunal said. It did not reject his evidence about the dance activities. Rather it did not accept that he had been threatened by the People’s Alliance “because of his participation in dance performances in support of the UNP”. The Magistrate correctly rejected this complaint.

7                     The fourth complaint is that the Tribunal was wrong to draw the conclusion that, “because it did not accept that I was involved in the above activities”, he was never attacked or threatened by members of the People’s Alliance. The activities in question are the UNP election activities and dance activities. This complaint is disposed of by what I have said at [5] and [6].

8                     The final complaint is that the Tribunal wrongly refused to accept that the appellant’s arm was injured by a member or supporter of the People’s Alliance. The Magistrate rejected this complaint on the ground that, even if the Tribunal made a wrong finding of fact, the error would not be jurisdictional. Quite apart from that, however, the Tribunal gave convincing reasons for not accepting the claim. It said:

While the applicant told the Tribunal that he disclosed his arm injury in the course of his medical examination undertaken in Sri Lanka in April 2006, the examination report shows that he did not disclose any injury either at that examination or at a subsequent examination carried out in Melbourne on 4 September 2007. When asked to comment on this information, the applicant stated that he did not want to disclose a pre‑existing injury because he thought it would adversely affect his student visa application. He did not, however, provide any explanation as to why he did not declare the injury at his medical examination carried out in Melbourne. Having regard to this information, and in the absence of any corroborating medical evidence, the Tribunal is not satisfied that the applicant has suffered any injury to his arm, much less an injury that was inflicted by a member or supporter of the PA.

9                     None of the complaints having been made out, the appeal is dismissed.

Associate:

Dated:         20 November 2008