MZRAE v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1503

FEDERAL COURT OF AUSTRALIA

MZRAE v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1503 MZRAE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL VID 88 OF 2005 SUNDBERG J 26 OCTOBER 2005 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 88 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: MZRAE

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: SUNDBERG J

DATE OF ORDER: 26 OCTOBER 2005

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The Refugee Review Tribunal be added as a respondent. 2. The appeal be dismissed. 3. 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.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 88 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: MZRAE

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: SUNDBERG J

DATE: 26 OCTOBER 2005

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 The appellant appeals from a Federal Magistrate's dismissal of her application to review the Refugee Review Tribunal's affirmation of the Minister's delegate's refusal to grant her a protection visa. Pursuant to s 25(1A) of the Federal Court of Australia Act the Chief Justice directed that the appeal be heard and determined by a single judge. 2 The background facts, the appellant's claims, the evidence before the Tribunal and its reasons are contained in its decision. Those matters are again recorded and summarised in the Magistrate's detailed and comprehensive reasons. It is unnecessary to set out them again. 3 The Magistrate summarised the appellant's case before her "as being that the Tribunal failed to identify and deal with the alleged Convention reason of political opinion imputed to the applicant by virtue of the closeness of her relationship with [her brother] Rajeswaran who, significantly, had not merely been a political operative or member of the LTTE but who died a high profile military operative of the LTTE and who, presumably, would have perpetrated or directed the execution of highly prejudicial attacks upon government forces (and be comprehended by the relevant authorities to have done so)." 4 The Magistrate concluded that the Tribunal had not fallen into the error thus alleged. Her Honour referred to parts of the Tribunal's reasons which showed that it considered the imputed political opinion referred to. She said: "The decision included that at page 21 …: 'I have been mindful that what she claims to have experienced in the past at the hands of the security authorities occurred when they were unaware, or later uncertain, of her family relationship to a committed LTTE member who died in the course of his involvement ….' It is clear that the Tribunal's consideration in this regard was in the context of the Tribunal's assessment of whether [the] applicant could face serious harm for a Convention reason if she were to return to Sri Lanka in the foreseeable future. Also at page 21, the Tribunal makes the following comments: 'I note that before the ceasefire I probably would have found that there was a real chance that the applicant could face persecution on the basis of her ethnicity and an associated political opinion or because of her membership of a particular social group defined as Rajeswaran's family' …."