Case: MZYDA v Minister for Immigration &amp; Citizenship [2009] FMCA 859
Outcome: affirmed
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 &amp; Citizenship [2009] FMCA 859. The Federal Magistrate dismissed the application for review. 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). 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: The decision of the Court / Tribunal was made without jurisdiction or is affected by an error of jurisdiction. Particulars 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. 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. 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. 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. 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: so that the appellant could request that the first respondent to grant him working rights so that he could afford legal assistance; that the appellant was unable to make legal submissions without legal assistance. That application was refused: MZYDA v Minister for Immigration &amp; Citizenship [2009] FCA 1389. 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. 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