MZYDA v Minister for Immigration & Anor [2009] FMCA 859 (15 September 2009)

Last Updated: 25 September 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYDA v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 859

MIGRATION – Fear of generalised violence in a country, not fear for Convention reason.

Migration Act 1958 (Cth), s.474

Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 W148/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 679; (2001) 185 ALR 703 Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472; 112 ALR 641 Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167 179; [1990] HCA 47; 96 ALR 354 Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547 (FC) Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Applicant A (Applicant A & Anor v Minister for Immigration and Ethnic Affairs & Anor (1997) 190 CLB 225 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 SZINP v Minister for Immigration and Citizenship [2007] FCA 1747 SZEHN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1389 Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 Paul v Minister for Immigration & Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396 Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 Steed v Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620 Karras v Minister for Immigration & Multicultural Affairs (1998) 56 ALD 167 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 Applicant A169 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 8 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 MZXGP v Minister for Immigration and Multicultural Affairs [2006] FCA 1314

Applicant:

MZYDA

First Respondent:

MINISTER FOR IMMIGRATION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 1601 of 2008

Judgment of:

Turner FM

Hearing date:

15 July 2009

Date of Last Submission:

15 July 2009

Delivered at:

Melbourne

Delivered on:

15 September 2009

REPRESENTATION

The Applicant appeared In Person

Solicitors for the Respondents:

Australian Government Solicitor Mr David Brown

ORDERS

(1) The application filed 24 December 2008 is dismissed.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE

MLG 1601 of 2008

MZYDA

Applicant

And

MINISTER FOR IMMIGRATION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Refugee Review Tribunal (“RRT”) dated 4 December 2008 that affirmed the decision of the Delegate to the Minister for Immigration and Citizenship not to grant the applicant a Protection (Class XA) Visa.
2. The applicant applied to the Department for a Protection (Class XA) Visa on 5 June 2008 (CB 1). The Delegate refused to grant a Visa by decision dated 2 September 2008 (CB 443-453). The applicant applied to the RRT to review the decision of the Delegate by application dated 25 September 2008 (CB 461).
3. The RRT held a hearing on 10 November 2008 at which the applicant appeared to give evidence and present arguments.
4. The applicant applied to the Court for judicial review of the decision of the RRT by application filed on 24 December 2008. The application sets out the following grounds and particulars:
   • "1. The decision of the tribunal was made without jurisdiction or is affected by an error of jurisdiction;
     • PARTICULARS
     • a. 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 applicant, but rather whether the applicant owing to a well founded fear is unable or unwilling to avail himself the protection of the country. The tribunal clearly has not understood the criterion for refugee status and applied the wrong test and thereby fell into jurisdictional error.
     • b. The claims of the applicant were capable of demonstrating that the persecution feared by the applicant in future, if he returned to Sri Lanka, was persecution for reason of perceived political opinion. The Tribunal has accepted that the applicant’s parents separated two months after he arrived in Australia. His mother and brother went and lived with his mother’s older sister. The applicant’s father is a successful business owner but did not want to financially support the applicant’s mother. There was no longer the financial support for the applicant to continue his studies in Australia. The applicant’s father had strong political connections with the United National Party (UNP). When the UNP lost power, the applicant’s father joined Janatha Vimukti Peramuna (JVP). His father’s best friend in JVP, Wimal Weerawansa was dispelled from the party and lost his electorate and ministerial benefits. Mr Weerawansa is in the process of forming a new party and the applicant’s father was the main financial supporter. His father was subject of intimidation and threats to his life for supporting Mr Weerawansa. The applicant’s father has gone into hiding and his mother and brother do not know where he is. Even though she is separated from the applicant’s father, his mother is also being threatened. The applicant’s mother and brother are in fear of their lives and have to move around so that they cannot be found. The applicant fears for his 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.
     • Nevertheless, the tribunal then dismisses his claims on the grounds his evidence was contradictory and lacked credibility. The tribunal has erred in the formation of this conclusion.
     • c. 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 is no reference to any Country Information and if it did refer to Country Information, there would be detailed information about the violence that takes place at election time between the UNP and the PA and information specifically about the police force, talks about the police force being politicized, politicians interfered severely with police activities, and that often politicians manipulated the police for their own.
     • d. The tribunal concludes that the applicant would not face a real chance of persecution for reasons of membership of a particular social group, that being his father’s family because It requires the acceptance of the supposition that whoever might be looking for the applicant’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 and son in Sri Lanka and, in the future, his other son who has been overseas since 1995. How does the applicant know whoever might be looking for the applicant’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 and son in Sri Lanka and, in the future, and by not harassing the applicant if he returns to Sri Lanka.
     • e. The tribunal further concludes that the Tribunal does not accept that his mother and brother have, in fact, been in hiding or moving from place to place since returning from the UK. Even if someone had approached them to ask for her former husband after so many years, there is no reason to suspect that a simple response on the basis of the long separation would not have sufficed to eliminate the nuisance. Madampe is not a large town and it is likely that it would be well-known that the marriage had broken down. The tribunal has not taken into account the fact that applicant’s mother and brother fears 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.”
5. The first particular is that the Tribunal applied the incorrect test as it did not apply the test of “whether the applicant owing to a well founded fear is unwilling or unable to avail himself (of) the protection of (his) country.” The RRT found that the applicant’s fear of persecution for a Convention reason is not well founded (CB 631.10). Having made that finding of fact, which is not open to review, the RRT was not required to make a finding as to whether the applicant, owing to a well founded fear, is unwilling or unable to avail himself of the protection of his country. In any event the RRT set out the correct test at (CB 624.10). This particular is dismissed.
6. The next particular alleges that the applicant’s claims were capable of demonstrating that the persecution feared by the applicant in future, if he returned to Sri Lanka, was persecution for reason of perceived political opinion. The applicant then set out matters that the RRT accepted and complains that the RRT dismissed his claims on the grounds that his evidence was contradictory and lacked credibility. He claims that the RRT erred in dismissing his claims for those reasons.

As stated by the Federal Court of Australia in Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]:

“The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.”

In W148/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 679; (2001) 185 ALR 703, Tamberlin and R.D Nicholson JJ stated at [64]:

“The Tribunal decision turned on the question of credibility. A finding as to credibility is a finding of fact and, as the authorities indicate, a reviewing body must not set aside such a finding simply because it thinks that the probabilities of the case are against, or even strongly against, the finding. As the High Court stated in Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472 at 479; 112 ALR 641 at 646 per Brennan, Gaudron and McHugh JJ:

• If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the findings must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable.””

See also Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167 at 179; [1990] HCA 47; 96 ALR 354. “This latter case was concerned with the scope for review of a decision founded in part on demeanour where the court at first instance had an opportunity to observe witnesses and form an impression as to the reliability of evidence given in response to questioning. Often a conclusion as to the credibility of a witness will depend not only on the body language and general impression conveyed by a witness in the way in which questions are answered but also on a careful consideration of the factual background or available information, coupled with ordinary experience as to likely patterns of response. Such an impression cannot be communicated by consideration of the transcript alone.”

The Court does not find that the Tribunal has failed to use, or has palpably misused, its advantage, or that it has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable or that the probabilities of the case are strongly against the findings rejecting the evidence of the applicant.

The Court refers to the following decisions:

“The Tribunal’s conclusion that the Applicant was not credible and his claims untrue are findings of fact par excellence: Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 (HCA/McHugh J) at [67]. So long as the Tribunal’s findings were open to it, no error is demonstrated: Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547 (FC) at 558-559; W148/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 679; (2001) 185 ALR 703 (FCA/FC) at [64-69] per Tamberlin and RD Nicholson JJ. The Tribunal’s findings were open for the reasons it gives. The Court cannot review the merits of the Tribunal’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272, and there is no error of law, let along a jurisdictional error, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at [137].”

The finding of fact about the applicant’s evidence were open to the RRT are based on the reasons set out in its decision. They are not open to review. This particular is dismissed.

7. The next particular sets out evidence alleged to be accepted by the RRT about the applicant’s parents separating; about the applicant’s father and his political ties; intimidation of his father; that his father has gone into hiding; that his mother is being threatened; that his mother and brother are in fear for their lives and have to move around; and that the applicant fears for his safety: and then complains that the RRT dismissed his claims on the grounds that his evidence was contradictory and lacked credibility. The RRT found that the applicant’s claims lacked substance and plausibility (CB 630.4) for the reasons it then set out. The RRT did not accept much of what was put to it. The RRT analysed the applicant’s evidence on the above issues at
   (CB 630.4-631.3). The RRT is entitled to accept or reject evidence preferred as it thinks appropriate in all the circumstances. (Lee Supra)

As to credibility:

In W148/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 679; (2001) 185 ALR 703, Tamberlin and R.D Nicholson JJ stated at [64]:

“The Tribunal decision turned on the question of credibility. A finding as to credibility is a finding of fact and, as the authorities indicate, a reviewing body must not set aside such a finding simply because it thinks that the probabilities of the case are against, or even strongly against, the finding. As the High Court stated in Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472 at 479; 112 ALR 641 at 646 per Brennan, Gaudron and McHugh JJ:

• If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the findings must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”.

See also Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167 at 179; [1990] HCA 47; 96 ALR 354. “This latter case was concerned with the scope for review of a decision founded in part on demeanour where the court at first instance had an opportunity to observe witnesses and form an impression as to the reliability of evidence given in response to questioning. Often a conclusion as to the credibility of a witness will depend not only on the body language and general impression conveyed by a witness in the way in which questions are answered but also on a careful consideration of the factual background or available information, coupled with ordinary experience as to likely patterns of response. Such an impression cannot be communicated by consideration of the transcript alone.”

The Court does not find that the Tribunal has failed to use, or has palpably misused, its advantage, or that it has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable or that the probabilities of the case are strongly against the findings rejecting the evidence of the applicant.

The Court refers to the following decisions:

“The Tribunal’s conclusion that the Applicant was not credible and his claims untrue are findings of fact par excellence: Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 (HCA/McHugh J) at [67]. So long as the Tribunal’s findings were open to it, no error is demonstrated: Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547 (FC) at 558-559; W148/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 679; (2001) 185 ALR 703 (FCA/FC) at [64-69] per Tamberlin and RD Nicholson JJ. The Tribunal’s findings were open for the reasons it gives. The Court cannot review the merits of the Tribunal’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272, and there is no error of law, let along a jurisdictional error, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at [137].”

That particular is dismissed.

8. The next particular is that the RRT did not discuss how the degree of state protection available in Sri Lanka could make fear at the hands of the PA or JVP members/supporters an unfounded fear. The applicant claims that there is no reference to country information. That is incorrect. The RRT referred to the large amount of country information provided by the applicant (CB 631.4) and had regard to it as it stated that is “appear(s) to indicate the existence of a claim based on the general situation in Sri Lanka, a situation involving corruption, kidnappings and an uncertain security situation” (CB 631.4). The RRT then referred to the decision of then Chief Justice Brennan in Applicant A (Applicant A & Anor v Minister for Immigration and Ethnic Affairs & Anor (1997) 190 CLR 225 at 232-233 as follows:

“...the object and purpose of the Convention is not simply the protection of those who suffer a denial of enjoyment of their fundamental rights and freedoms; they must suffer that denial by prescribed kinds of persecution, that is, persecution “for reasons of race, religion, nationality, membership of a particular social group or political opinion”.

The RRT referred also to what James Hathaway stated in his text The Law of Refugee Status (Butterworths, Canada 1991, p.93):

Because...refugee law is concerned only with protection from serious harm tied to a claimant’s civil or political status, persons who fear harm as the result of a non-selective phenomenon are excluded. Those impacted by...generalised failure to adhere to basic standards of human rights are not...entitled to refugee status on that basis alone.

Those passages set out correct statements of the law.

The RRT set out its reasons for concluding that the applicant’s “fear of persecution for a Convention reason is not well-founded”. (CB 631.10) The RRT made a finding of fact that “there is not a real chance that the applicant would face a real chance of persecution for reason of his imputed political opinion”. (CB 631.9) That finding of fact was open to the RRT and is not open to review.

The RRT considered the implied claim that the applicant would be persecuted on account of his membership of his father’s family, being a particular social group (CB 631.2). The RRT considered the evidence in support of that claim and found as a fact that “the applicant would not face a real chance of persecution for reasons of membership of a particular social group, that being his father’s family.” (CB 631.3).

After having found that the applicant would not face a real chance of persecution for reason of his imputed political opinion, or his membership of a particular social group, the RRT then found that there is not a real chance that the applicant would be persecuted for any other Convention reason (CB 631.9). Those findings of fact was properly open to the RRT and are not subject to review.

The RRT set out its reasons for finding that the applicant did not have a well founded fear of persecution for a Convention reason. Having made that finding, the RRT was not called on to discuss how the degree of state protection could make an alleged fear an unfounded fear.

That particular is dismissed.

9. The next particular refers to there being no reference to Country Information. That claim is considered and dismissed below.
10. The next particular seeks to review the RRT’s conclusion that it did not accept that the applicant’s mother and brother have, in fact, been hiding or moving from place to place since returning from the UK.

The applicant thereby seeks to review a finding of fact by the RRT. That review is not open.

In NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, the Full Court of the Federal Court decided at [10] as follows:

“In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s.39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to merits of the case put to the Tribunal.”

The Court refers to the decision of Collier J in SZINP v Minister for Immigration and Citizenship [2007] FCA 1747 at [26] as follows:

“Decisions of the Tribunal are privative clause decisions and as such are not open to review on the facts: S157/2002 v Commonwealth (2003) 211 CLR 476. As is clear from such cases as Attorney-General (NSW) v Quin (1990) 170 CLR 1 and NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 76 errors of fact do not give rise to jurisdictional errors.”

The applicant also seeks a review of the RRT’s rejection of evidence. That review is also not open.

As stated by the Federal Court of Australia in Lee (supra):

“The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.”

That particular is dismissed.

11. The applicant quotes a passage from CB 630.8 that:
    • “Even if someone had approached them (his mother and brother) to ask for her former husband after so many years, there is no reason to suspect that a simple response on the basis of the long separation would not have sufficed to eliminate the nuisance. Madampe is not a large town and it is likely that it would be well-know (sic “known”) that the marriage had broken down.”

The applicant seeks a review of that finding of fact, which is not open to review (NAHI Supra).

12. The next particular complains that the RRT has not taken into account the fact that the applicant’s mother and brother fears (sic “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.

The RRT considered the evidence about alleged fears by the mother at CB 630.4 and found:

“the prospect of someone going after the applicant’s mother and, in future, the applicant, in order to identify the whereabouts of his father for the reason that he has switched his political support, an implausible proposition” CB (630.5).

The RRT was entitled to reject that evidence and make that finding of fact, which is not open to review.

The RRT continued:

“No critical event at a point in time has been mentioned to the Tribunal which would throw light on the reason that, specifically in January or February 2008, when his mother and brother returned from a year in the UK, there was a motive to seek out the whereabouts of a person whose family had not had any contact with for at least a decade” (CB 630.6)

The Tribunal continued:

“The Tribunal does not accept that his mother was targeted or that he would be targeted for this reason” (CB 630.7)

Those findings of fact were open to the RRT and are not open to review.

The RRT continued:

“The Tribunal does not accept that his mother and brother have, in fact, been in hiding or moving from place to place.”
(CB 630.8)

The RRT was free to accept or reject evidence as it thought appropriate (Lee Supra) and make findings of fact. Those findings were not open to review. (NAHI Supra). This particular is dismissed.

13. The applicant has not shown any error of law, and basically seeks a review of the merits and the RRT’s decisions as to what evidence it accepted or rejected. Those matters are not properly subject to review. The Court dismisses all particulars of complaint by the applicant.
14. The applicant’s Contentions of Fact and Law are covered by the above and do not require separate reference, except as follows:
    • 14.1 The applicant claims that the RRT should have made reference to a report of the United States Department of State Report. In NAHI (supra) the Full Court stated as to country information at [11]:
      • “The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function.”
    • The RRT referred to the country information provided by the applicant and stated that it appeared:
      • “...to indicate the existence of a claim based on the general situation in Sri Lanka, a situation involving corruption, kidnappings and an uncertain security situation. The Tribunal has considered this aspect of the applicant’s claims.” (CB 613.4)
    • It is therefore apparent that the RRT had regard to the Country Information provided by the applicant.

14.2 The applicant refers to articles by Feizal Samath and Hiranthi Fernando in the Sunday Times about the same occurences. However the RRT refers to the decision in Applicant A (supra) and the statement by Hathaway (supra) that state that the denial of fundamental rights and freedoms do not come within the Convention unless they are a specified class” (CB 631.4). The RRT found that:

• “...the fears expressed in this regard, as fear of generlaised violence in Sri Lanka, do not involve systematic and discriminatory conduct and would not impact on the applicant differently for any Convention reason.”
  (CB 631.8)

The Court makes the same comments in relation to the reference to the DFAT, material (DFAT, 1996, Cable 439; 1994 Cable CL 36560), the Country Issues Paper May 2003 and the reports from the Centre for Monitoring Election Violence (CMEV).

14.3 The applicant asks why the RRT did not refer to the various reports he refers to.

As stated in SZEHN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1389 at [58]:

“It is well established that the Tribunal is not obliged to refer in its reasons to every item of evidence that was before it: Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 at 414; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 593; Paul v Minister for Immigration & Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396 at [79]; Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 (‘Applicant WAEE’) at [46]; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [14]. It follows that the omission to refer to a piece of evidence does not necessarily require a conclusion that it has been overlooked: Steed v Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620 at 621 per Fox J; Karras v Minister for Immigration & Multicultural Affairs (1998) 56 ALD 167 at 173.”

Failure to take a relevant consideration into account can only be made out where the Tribunal failed to take into account a consideration which it is bound under the Act to consider: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24. Where the elements of the claim have been considered, the failure to mention expressly part of the applicant’s evidence does not show jurisdictional error: Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396 at [79] per Allsop J; Applicant A169 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 8 at [24]; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [68]; MZXGP v Minister for Immigration and Multicultural Affairs [2006] FCA 1314 at [13]- [15] per Middleton J.

The RRT referred to the country information as indicating, the existence of a claim based on the general situation in Sri Lanka, a situation involving corruption, kidnappings and an uncertain security situation (CB 631.4).

However, the RRT found that the fears of generalised violence in Sri Lanka do not involve systematic and disciminatory conduct that would impact on the applicant differently for any Convention reason (CB 631.8).

The material was considered, and there was no necessity for the RRT to refer to it in detail.

The Court refers again to SZEHN (supra).

15. The Court finds that the Tribunal’s decision is a privative clause decision that has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
16. The application is dismissed.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Turner FM

Associate: Eyal D’vier

Date: 15 September 2009