Mendis v Minister for Immigration and Multicultural Affairs

[2001] FCA 1660

FEDERAL COURT OF AUSTRALIA

Mendis v Minister for Immigration & Multicultural Affairs [2001] FCA 1660

MIGRATION – application for protection visa – no point of principle

Migration Act 1958 (Cth), s 36, s 65

NIROSHA RAJINI MENDIS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N478 of 2001

LEE, MOORE & MADGWICK JJ
7 NOVEMBER 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N478 of 2001

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

NIROSHA RAJINI MENDIS
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE:

LEE, MOORE & MADGWICK JJ

DATE OF ORDER:

7 NOVEMBER 2001

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

The appeal be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N478 of 2001

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

NIROSHA RAJINI MENDIS
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGES:	LEE, MOORE & MADGWICK
DATE:	7 NOVEMBER 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:

1. We have taken the opportunity to consider the appellant’s submissions and are now in a position to deliver our decision and reasons.

2. The appellant is a citizen of Sri Lanka who arrived in Australia on a student visa.  She joined her husband who, apparently, had earlier entered and resided in Australia pursuant to a visa related to employment.  At the time the appellant left Sri Lanka she had experienced a number of unpleasant episodes of harassment, the occurrence of which she attributed to her position as a married woman not residing with her husband.  That is, as the appellant put it, she was perceived by others to be vulnerable and capable of being a target of unsought and unsettling attention.

3. After arrival in Australia, the appellant made an application for a protection visa, under the Migration Act 1958 (Cth) (“the Act”). It appears that the appellant claimed that her past experiences in Sri Lanka would continue if she returned to Sri Lanka and that such conduct would be directed to her as a member of a particular social group as defined above. The Tribunal upheld a decision of a delegate of the Minister not to grant the appellant a protection visa and did so on the ground that the facts described by the appellant, largely accepted by the Tribunal, did not amount to persecution within the meaning of the “Convention”, a term defined in the Act, as required by s 36 and s 65 of the Act. The harm feared was not considered to have been of such severity or gravity that it would cause a person to forsake the country of nationality and seek protection elsewhere if the country of nationality was unable to provide that protection.

4. This appeal is from a decision of a Judge of this court, Wilcox J, who found that no error had been demonstrated in the decision-making process of the Tribunal.  The appellant was represented before Wilcox J but unrepresented on the hearing of this appeal.  The appellant, therefore, was unable to present any separate submissions in support of the appeal and relied upon the arguments that were put to his Honour by counsel on her behalf in the hearing below.

5. We have read the reasons provided by his Honour for his decision and we are unable to find that his Honour erred in disposing of the arguments put to him by counsel for the appellant.  His Honour noted that the Tribunal found as a fact that the magnitude of the harm suffered by the appellant was not sufficient to ground a conclusion that any fear of persecution held by the appellant if returned to Sri Lanka was well founded.

6. His Honour held, and we agree, that that finding of fact was fatal to the appellant’s application for review of the Tribunal’s decision and similarly it is fatal to this appeal, there being no attack on the finding of fact made by the Tribunal as a finding made in the absence of jurisdiction or authority, or involving an error or law.  The appeal must be dismissed with costs.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of this Honourable Court.

Associate:

Dated:             12 December 2001

Counsel for the Applicant:	The Appellant appeared in person
Counsel for the Respondent:	T Reilly
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	7 November 2001
Date of Judgment:	7 November 2001