MZAEL v Minister for Immigration and Border Protection

[2015] HCASL 222

MZAEL

v

MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR

[2015] HCASL 222
M195/2015

1. The applicant is a Sri Lankan citizen of Tamil ethnicity.  He arrived in Australia in late May 2011.  On 3 June 2011, the applicant applied for a Protection (Class XA) visa.  On 21 March 2012, a delegate of the first respondent refused the application.  The applicant applied to the Refugee Review Tribunal ("the Tribunal") for review of the delegate's decision.

2. On 28 April 2014, the Tribunal affirmed the delegate's decision not to grant the applicant a Protection (Class XA) visa.  The Tribunal found that the applicant was not someone in respect of whom Australia owed protection obligations.  He was found not to have a well‑founded fear of persecution in Sri Lanka, and not to face a real risk of significant harm as a result of his political opinions, his profile as a Tamil‑speaking Muslim in Kandy, or the circumstance that he would return as a failed asylum seeker after a lengthy period overseas.

3. On 25 March 2015, the Federal Circuit Court of Australia (McGuire J) dismissed the applicant's application for judicial review of the Tribunal's decision.  McGuire J rejected the applicant's argument that the Tribunal fell into jurisdictional error by failing to consider certain integers of the applicant's claim, namely, his profile as a practicing Muslim and the availability of mental health services in Sri Lanka.  His Honour also held that the Tribunal's findings were open to it, that the Tribunal properly considered a psychiatric report, and that it did not improperly deny the applicant the opportunity to comment on that report.  

4. The applicant appealed to the Federal Court of Australia (Logan J).  The applicant argued that the Tribunal conflated his Tamil ethnicity with his adherence to the Muslim faith and in doing so fell into jurisdictional error.  The applicant also argued that the Tribunal failed to give conscious consideration to the applicant's mental health and the psychiatric report.  On 3 August 2015, Logan J rejected both arguments and dismissed the appeal.

5. The applicant seeks special leave to appeal to this Court.  The application does not raise any issue of law that would justify a grant of special leave and there is no reason to doubt the correctness of the decisions below.  An appeal to this Court would enjoy no prospect of success.  Special leave is refused.

6. Pursuant to r 41.10.5, we direct the Registrar to draw up, sign and seal an order dismissing the application.

S.M. Kiefel
10 December 2015 P.A. Keane