FEDERAL COURT OF AUSTRALIA

MZYDA v Minister for Immigration & Citizenship (No 2) [2009] FCA 1390

MIGRATION – appeal – protection visa – whether jurisdictional error

Held: appeal dismissed

Judiciary Act 1903 (Cth) s 39B(1)

Migration Act 1958 (Cth) Pt 8

Abebe v Commonwealth of Australia(1999) 197 CLR 510 applied

MZYDA v Minister for Immigration & Citizenship [2009] FMCA 859 affirmed

SHJB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 43 applied

MZYDA v MINISTER FOR IMMIGRATION & CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

VID 722 of 2009

GORDON J

24 NOVEMBER 2009

MELBOURNE

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The Appellant pay the First Respondent’s costs of the appeal to be taxed in default of agreement.

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                          This is an appeal against an order of Federal Magistrate Turner of 15 September 2009 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) of 4 December 2008.  The Tribunal affirmed a decision of a delegate of the first respondent (“the first respondent”) to refuse to grant the appellant a protection visa under the Migration Act 1958 (Cth) (“the Act”). 

PROCEDURAL HISTORY

2                          The appellant is a citizen of Sinhalese ethnicity from Sri Lanka who first entered Australia on 21 July 1995 as a holder of a Class TU Subclass 560 Student visa.  On 30 June 1997, the appellant applied for a protection visa, but that application was deemed invalid. 

3                          On 4 June 2008, the appellant applied again for a protection visa.  On 2 September 2008, the first respondent refused that application for a protection visa. 

4                          On 25 September 2008, the appellant applied to the Tribunal for a review of that decision.  A Tribunal hearing was conducted on 18 November 2008.  The appellant appeared, gave evidence and presented argument.  On 4 December 2008, the Tribunal affirmed the decision of the first respondent.  The appellant then sought review of the Tribunal’s decision and, on 15 September 2009, the Federal Magistrates Court dismissed that application for review. 

5                          Before the Tribunal the appellant claimed fear of persecution in Sri Lanka for the following reasons:

1.         The appellant’s father had strong political connections with the United National Party (“UNP”).  When the UNP lost power, his father joined Janatha Vimukti Peramuna (“JVP”). The appellant’s father’s best friend, Wimal Weerawansa (“Mr Weerawansa”), a member of JVP, lost his electorate and his ministerial benefits.

2.         Mr Weerawansa was in the process of forming a new party and the appellant’s father, a business owner, had become the main financial supporter.  This led to the appellant’s father becoming the subject of intimidation and threats to his life.  The appellant claimed that his father had gone into hiding.

3.         The appellant feared for his safety because he alleged that it was common practice in Sri Lanka for political opponents to kidnap and murder family members of political figures.

THE TRIBUNAL DECISION

6                          The Tribunal concluded that it was not satisfied that the appellant’s application invoked protection obligations in Australia.  In particular, the Tribunal concluded that the appellant’s claims lacked substance and plausibility and that the appellant would not face a real chance of persecution by reason of his imputed political opinion arising from his membership of a particular social group, namely his father’s family.  The Tribunal stated:

[It] finds that the total context of the claims relating to the family connection of the [appellant] with his father is implausible.  It requires the acceptance of the supposition that whoever might be looking for the [appellant’s] father has, only after 13 or so years, hit upon the strategy of finding his [father’s] whereabouts by harassing and threatening first his wife [who he separated from 13 years ago and later divorced] and son in Sri Lanka and, in the future, his other son [the appellant] who has been overseas since 1995 [and has not spoken to his father for over 12 years].

7                          As a result, the Tribunal was not satisfied on the evidence before it that the appellant would face a real chance of persecution for any reason under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (“the Convention”), now or in the reasonably foreseeable future, were he to return to Sri Lanka.

THE COURT BELOW

8                          The appellant filed an application for review in the Federal Magistrates Court on 24 December 2008.  One ground of review was specified, namely, that “[t]he decision of the Tribunal was made without jurisdiction or [was] affected by an error of jurisdiction”.  Five particulars were specified.  They are set out at para [4] of MZYDA v Minister for Immigration & Citizenship [2009] FMCA 859.  The Federal Magistrate dismissed the application for review. 

APPLICATION TO THIS COURT

9                          The appellant seeks prerogative relief of the kind issued in the exercise of the Federal Court’s original jurisdiction under s 39B(1) of the Judiciary Act 1903 (Cth).

10                        The Notice of Appeal filed in this Court on 6 October 2009 was substantially a reproduction of the application filed in the Federal Magistrates Court (see [8] above).  The ground of appeal, and the corresponding particulars, in this Court were:

1.         The decision of the Court / Tribunal was made without jurisdiction or is affected by an error of jurisdiction. 

Particulars

a.         The Court and the tribunal misconstrued and misinterpreted the convention criterion in that the test is not whether the Sri Lankan government was unable or unwilling to protect the [appellant], but rather whether the [appellant] owing to a well founded fear is unable or unwilling to avail himself the protection of the country.  The Court and the tribunal clearly has not understood the criterion for refugee status and applied the wrong test and thereby fell into jurisdictional error.

b.         The tribunal did not discuss how the degree of state protection available in Sri Lanka could make fear of persecution at the hands of the PA and JVP members / supporters an unfounded fear.  There was no reference to any country information and the tribunal was duty bound to appraise itself of the situation and if it did refer to country information, there would have been detailed information about the violence that takes place at election time between the UNP and the PA and information specifically about the police force, reference to the police force being politicized and information about politicians who interfere with police activities and how politicians rampantly manipulate the police force.

c.         The Court and the tribunal have erred in that it did not take into account the fact that the [appellant’s] mother and brother fear for their safety because it is common practice amongst political opponents in Sri Lanka to kidnap and murder family members in order to force the targeted person to cooperate with their demands.

d.         The tribunal did not properly consider the claim that the [appellant] would be persecuted on account of his membership of his father’s family, being a particular social group.

11                        At the hearing of the appeal, the appellant requested an adjournment in order to seek legal assistance.  The appellant submitted the adjournment was necessary for two reasons:

1.         so that the appellant could request that the first respondent to grant him working rights so that he could afford legal assistance;

2.         that the appellant was unable to make legal submissions without legal assistance. 

That application was refused: MZYDA v Minister for Immigration & Citizenship [2009] FCA 1389.

12                        The appellant made no substantive oral submissions to the Court, notwithstanding that the first respondent had explained to the appellant that he would be expected to do so both in a letter dated 17 November 2009 and by telephone.  The appellant informed the Court that he had been in Australia for 14 years and he could not return to Sri Lanka. 

13                        For the reasons that follow, I cannot identify an appellable error.  The appeal has no prospects of success.  I will now consider each particular in turn.

GROUND 1(a):  Incorrect Test Applied By The Court and Tribunal

14                        The first possible ground for review considered by the Federal Magistrate was a claim that the Tribunal applied the incorrect test as it did not apply the test of “whether the [appellant] owing to a well founded fear [was] unwilling or unable to avail himself (of) the protection of (his) country”. 

15                        The Federal Magistrate dealt with this complaint in the following terms (at [5]):

The [Tribunal] found that the [appellant’s] fear of persecution for a Convention reason [was] not well founded.  Having made that finding of fact, which is not open to review, the [Tribunal] was not required to make a finding as to whether the [appellant], owing to a well founded fear, is unwilling or unable to avail himself of the protection of his country.  In any event, the [Tribunal] set out the correct test …  This particular is dismissed.

16                        I can identify no appellable error.  This ground of complaint should be dismissed.

GROUND 1(B):  State Protection Available in Sri Lanka And Country Information

17                        The second possible ground of review was that the Tribunal did not discuss how the degree of state protection available in Sri Lanka could make fear of persecution at the hands of the “PA” and JVP members / supporters an unfounded fear and that there was no reference to country information.

18                        The Federal Magistrate dealt with this complaint at [8] of his reasons.  His Honour noted that the Tribunal referred to a large amount of country information provided by the appellant and that the Tribunal had regard to that country information in concluding that the appellant’s stated fear of persecution for a convention reason was not well founded.  I can identify no appellable error.  This ground of complaint also should be dismissed. 

GROUND 1(c):  Court And Tribunal Erred In Not Taking Into Account That Appellant’s Mother And Brother Fear For Their Safety

19                        As the Federal Magistrate identified at [10] of his reasons, what the appellant seeks is merits review of the Tribunal’s fact finding function.  That is not the role of this Court:  see Pt 8 of the Act and Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187]; SHJB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 43 at [12]. 

20                        I can identify no appellable error.  This ground of complaint should also be dismissed.

GROUND 1(D):  Tribunal Did Not Properly Consider That The Appellant Would Be Persecuted On Account Of His Membership Of His Father’s Family, Being A Particular Social Group

21                        This aspect of the ground of appeal was not further particularised.  As summarised at [6] and [7] above, the Tribunal did consider the appellant’s contention that he would be persecuted on account of his membership of his father’s family and rejected such a contention.  This finding was open to the Tribunal.

22                        I can identify no appellable error.  This ground of complaint should also be dismissed.

CONCLUSION

23                        I would dismiss the appeal and order the appellant to pay the first respondent’s costs of the appeal to be taxed in default of agreement. 

Associate:

Dated:         24 November 2009