MZYBC v Minister for Immigration & Citizenship [2009] FCA 417

FEDERAL COURT OF AUSTRALIA

MZYBC v Minister for Immigration & Citizenship [2009] FCA 417 Migration Act 1958 (Cth), ss 91R, 91R(2) MZYBC v Minister for Immigration and Anor [2008] FMCA 1567 affirmed

MZYBC v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

VID 1096 of 2008

GRAY J

4 MARCH 2009

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 1096 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: MZYBC

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: GRAY J

DATE OF ORDER: 4 MARCH 2009

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. The time for the appellant to file and serve a notice of appeal be extended to 30 December 2008. 2. The draft notice of appeal filed on 30 December 2008 be treated as the appellant's notice of appeal. 3. The appeal be dismissed. 4. 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. IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 1096 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: MZYBC

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: GRAY J

DATE: 4 MARCH 2009

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 This appeal is from a judgment of the Federal Magistrates Court, delivered on 21 November 2008, and published as MZYBC v Minister for Immigration and Anor [2008] FMCA 1567. The learned federal magistrate dismissed with costs an application by the appellant to review a decision of the second respondent to the appeal, the Refugee Review Tribunal ("the Tribunal"). The Tribunal affirmed a decision of a delegate of the first respondent to the appeal, the Minister for Immigration and Citizenship ("the Minister"), to refuse to grant to the appellant a protection visa. 2 The appellant is a citizen of Sri Lanka. She arrived in Australia on 12 April 2007. On 21 May 2007, she applied for a protection visa. On 10 July 2007, the Minister's delegate made a decision refusing to grant her a protection visa. Unfortunately, by letter dated the same date, the appellant's migration agent was mistakenly advised that the appellant had been granted a protection visa. The letter was erroneous in that, although it included in the heading the name of the appellant, following the abbreviation "Ms", the references to the migration agent's client in the letter were all expressed in the male gender. The error was corrected by a subsequent letter dated 16 July 2007, which enclosed a copy of the earlier decision record, giving the delegate's reasons for refusing the application. 3 The appellant applied to the Tribunal for review of the decision. The Tribunal conducted a hearing on 10 October 2007, at which the appellant gave oral evidence through an interpreter in the Sinhalese language, and at which the appellant was represented by a migration agent. The Tribunal's decision was dated 1 May 2008 and handed down, or sent to the appellant, on 3 June 2008. 4 The appellant then applied to the Federal Magistrates Court for judicial review of the decision to refuse her a protection visa. Her application to that court was in something of a standard form, and was obviously prepared with the assistance of a lawyer or migration agent, although it was lodged in the name of the appellant. It particularised eight grounds under the general proposition that the Tribunal's decision was made without jurisdiction, or was affected by an error of jurisdiction. 5 In his reasons for judgment, the federal magistrate dealt with each of those grounds. The first was the allegation that, by taking into account what it considered to be the low level of knowledge of the applicant with respect to politics in Sri Lanka, the Tribunal took into account an irrelevant consideration. The federal magistrate found that the appellant's level of knowledge of politics in Sri Lanka was relevant to her claim that she had a well-founded fear of persecution for the reason of her political opinion if she should return to Sri Lanka. In particular, the appellant claimed a long history of involvement with the United National Party, and the Tribunal took the view that someone who had had such an involvement as she claimed would have had more knowledge of what the party stood for. The federal magistrate concluded that the appellant had not demonstrated an error by the Tribunal going to its jurisdiction, and that the consideration was relevant. 6 The second ground was that the Tribunal did not give adequate consideration to the appellant's psychological state. As the federal magistrate said, the Tribunal did discuss the appellant's psychological state, recounting evidence from two qualified professionals, and specifically taking into account the appellant's psychological state and general health as factors that might adequately explain her lack of knowledge or apparent interest in matters the Tribunal thought she ought to have known or been interested in. The federal magistrate took the view that this ground was an attempt to seek a merits review of the Tribunal's decision by challenging the Tribunal's conclusions of fact rather than a review on the basis of jurisdictional error. His Honour held that it was open to the Tribunal to proceed to make the findings that it did. 7 The third ground was that the Tribunal drew conclusions not based upon evidence. This ground challenged the Tribunal's finding on the delay between the appellant receiving death threats in the wake of the April 2004 general election in Sri Lanka and her departure from Sri Lanka to come to Australia in 2007. The federal magistrate set out in detail the Tribunal's reasoning on this matter, and found that the conclusions of the Tribunal were open to it. His Honour also said that there could be no error on the part of the Tribunal that would amount to jurisdictional error in that regard. 8 The fourth ground was that the Tribunal misconstrued and misinterpreted the Convention criterion. This ground accused the Tribunal of misunderstanding the test to be applied, as it was not whether the Sri Lankan Government was willing or able to protect the appellant, but whether the appellant, owing to well-founded fear, was unable or unwilling to avail herself of the protection of that country. As the federal magistrate pointed out, the Tribunal concluded that the appellant did not face a real chance of persecution in the reasonably foreseeable future, and, on that basis, the availability of State protection was not a relevant matter. Any finding of the Tribunal about State protection was a secondary issue only, because the appellant did not have a well-founded fear of persecution. Again, his Honour referred in detail to the Tribunal's reasoning. 9 The fifth ground also raised the question of State protection, and the question whether a fear of persecution was unfounded, as did the sixth, which asserted that the Tribunal's decision on State protection was contrary to the material before the Tribunal. In relation to both of these grounds, the federal magistrate referred again to the fact that the Tribunal had concluded that the appellant did not have a well-founded fear of persecution. As his Honour said at [23] of his reasons for judgment: