MZYYI v Minister for Immigration - [2012] FMCA 1153

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYYI v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 1153

MIGRATION – Adverse assessment by Independent Merits Reviewer – credibility concerns – whether a failure to accord procedural fairness – whether Reviewer categorised LTTE members – whether there was no evidence at all on which critical findings were based – whether applicant at risk from paramilitary groups – assessment of country information is for the Reviewer – application for judicial review dismissed.

Migration Act 1958 (Cth), s.474

Attorney General for the State of NSW v Quin (1990) 170 CLR 1 Lee vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 Luu & Anor v Renevier (1989) 91 ALR 39 Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 Nagalingham v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 191 NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10 NAQZ of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs; NAQY of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 898 NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 Randhawa v Minister for Immigration and Ethnic Affairs (1994) 52 FCR 437 Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402 SZFWB v Minister for Immigration and Citizenship [2007] FCA 167 SZINP v Minister for Immigration and Citizenship [2007] FCA 1747 VWBF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 851 Yao-Jing v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275
Applicant:	MZYYI

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

KERRY BOLAND IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number:

MLG 659 of 2012

Judgment of:

F. Turner FM

Hearing date:

13 November 2012

Date of Last Submission:

13 November 2012

Delivered at:

Melbourne

Delivered on:

7 December 2012

REPRESENTATION

Counsel for the Applicant:

Mr Fairfield

Solicitors for the Applicant:

Ambi Associates

Counsel for the First Respondent:

Mr Mosley

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

The application for judicial review filed on 5 June 2012 is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 659 of 2012

MZYYI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

KERRY BOLAND IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

This is an application for judicial review and declaratory and injunctive relief in relation to a recommendation on 9 March 2012 by an Independent Merits Reviewer (an “IMR”) that the applicant not be recognised as a person to whom Australia has protection obligations under the 1951 Convention relation to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (the “Convention”) (Court Book (“CB”) p.221).
The applicant arrived on Christmas Island on 9 May 2010 (CB p.62).
The applicant is a Sri Lankan of Tamil ethnicity and Hindu religion.
The applicant requested a Refugee Status Assessment (“RSA”) on 18 July 2010 (CB p.42). On 29 September 2010, the RSA was that the applicant was not someone to whom Australia owes protection obligations (CB p.89).
The applicant sought an Independent Merits Review Assessment (an “IMRA”) on 21 October 2010 (CB p.93). The IMRA dated 18 March 2011 was adverse to the applicant (CB p.128).
The applicant applied to this Court on 20 May 2011 for judicial review of the IMRA. On 18 October 2011, by orders by consent, Burchardt FM declared that the IMR had failed to apply the correct law.
The applicant’s migration agent filed a written submission for consideration by a second IMR on 7 December 2011 (CB p.151). The applicant was interviewed for the second IMRA on 8 December 2011 (CB p.200).
As a result of credibility concerns arising in that interview, the Independent Protection Assessment Office sent a letter to the applicant’s migration agent, which invited comments by 23 December 2011 on inconsistencies in details given by the applicant (CB p.173). A response was sent by the migration agent on 23 December 2011 (CB p.178).
The second IMRA dated 9 March 2012, also recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention.
On 5 June 2012, the applicant filed an application for judicial review by the Court of the second IMRA and an amended application on 24 October 2012.
The ground in the amended application is as follows:
(1)The Independent Merits Reviewer (“IMR”) failed to accord procedural fairness and/or erred in law and/or failed to act judicially in that there was no evidence or probative material to support the findings and/or critical findings made by the IMR that there were categories of former LTTE members who would not be at risk upon return to Sri Lanka and that the Applicant was a member of such categories.
Registrar Allaway ordered on 4 July 2012 that:
(9)The applicant file and serve written submissions and a list of authorities on or before 10 August 2012.
(10)The first respondent file and serve written submissions and a list of authorities on or before 31 August 2012.
Written submissions by Counsel for the applicant were filed on 24 October 2012, after submissions were filed for the first respondent on 6 September 2012: further written submissions were filed for the first respondent on 9 November 2012. It is for good reasons that a Registrar makes orders for the filing and serving of submissions – those orders must be complied with.
At the hearing on 13 November 2012, Mr Fairfield of Counsel appeared for the applicant and Mr Mosley of Counsel for the first respondent.

Written Submissions for the Applicant

Mr Fairfield contends that:
“… there was no evidence, material or country information… to remotely suggest that non-combatant LTTE (Liberation Tigers of Tamil Eelam) members… would not, face a real chance of persecution in the north of Sri Lanka nor was there any evidence to suggest any identification or delineation of the categories or sub-categories of former members of the LTTE who would or would not be at risk”. [7]
The Court accepts the written submission for the first respondent that to establish that there was no evidence to support a finding made,
“… the applicant must show that there was no evidence at all upon which the critical finding could have been based”. (emphasis added) [3] of the further contentions filed 9 November 2012.
Mr Mosley referred to the following authorities for the proposition:
(1)Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356; Minister for Immigration and Multicultural Affairs v Al-Miahi (2001) 65 ALD 141 at [34]-[35]; Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222 at 232-233, 236, 240 and 259; VAAW of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 202 at [33]-[35].
(2)Gilmour J made precisely the same point in SZHZF v Minister for Immigration and Citizenship [2007] FCA 1173 at [33].
As Heerey J said in VWBF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 851 at [17]:
“To succeed on the “no evidence” ground the appellant would have to show that there was no evidence at all upon which the finding could have been based: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 356”.
As Kenny J said in SZFWB v Minister for Immigration and Citizenship [2007] FCA 167 at [31]:
“The “no evidence” ground will not be made out if there is some basis in the evidence for the challenged factual finding. This is so even if the evidence is slight”.
As the Full Court said in SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402 at [19]-[20]:
“If the tribunal makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding then this may well constitute a jurisdictional error: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355–7; 94 ALR 11 at 37–8; 21 ALD 1 at 23–4. If the decision of the tribunal was “Wednesbury” unreasonableness or if the material on which the tribunal relied was so inadequate that the only inference was that the tribunal applied the wrong test or was not, in reality, satisfied in respect of the correct test, then there would also be jurisdictional error: see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003)198 ALR 59 at 62, 67, 76, 90–91; 73 ALD 1 at 4, 8–9, 18, 31–3. (S20).
On the other hand, if there is sufficient evidence or other information before the tribunal on which it could reach the conclusion it did then it is for the tribunal to determine what weight it gives to that evidence. Indeed, unless the relevant fact can be identified as a “jurisdictional fact”, there is no error of law, let alone a jurisdictional error, in the tribunal making a wrong finding of fact: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35–6; 93 ALR 1 at 24–5. 77 ALD 402 SFGB v MIMIA (Full Court) 407. It is for the tribunal to determine the merit of the claim. The line between merit review and jurisdictional error may not be a “bright line”, but it is nevertheless an essential one: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; 136 ALR 481 at 490–1; 41 ALD 1 at 9”.
The Court accepts the submissions for the first respondent that the IMR accepted the applicant’s evidence that he has been a non-combatant member of the LTTE until 2002, working principally as a driver/repairer of motor vehicles (CB p.218.1).
The IMR accepted that the applicant did not have a high profile (CB p.217 [70] and p.218.2), but, living in an LTTE controlled area was caught up in the general violence and suspicion of Tamils in the north at the time. The IMR put to the applicant country information about the treatment of Tamils in the final stages of the war and in the immediate aftermath (CB p.217 [70]).
The IMR put to the applicant country information that the situation in Sri Lanka had changed markedly since the war ended in May 2009 (CB p.217.8).
The IMR referred to the UNHCR Guidelines of July 2010 which concluded that there was no longer a need for group protection based mechanisms. (CB p.214 [62]).
The IMR noted that the UNHCR Guidelines referred to “potential risk profiles” which included “Persons Suspected of Having Links with the…(LTTE)…” (CB p.217 [70]).
As stated in NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10 at [11]:
“By s.420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s.424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that”.
As stated by the Federal Court of Australia in Lee vMinister 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”.
The IMR did not accept that the applicant would be “interrogated as a person of interest” (CB p.217.10). The IMR did not accept that even if a photograph had been taken of the applicant holding a gun, that he would be of interest to the authorities given his low profile and the passage of time (CB 218.2). The IMR set out various other matters that supported the finding that the applicant would not face a real chance of persecution in the north of Sri Lanka (CB p.218.3).
Mr Fairfield contends that there was no evidence that the situation for non-combatant Sihks had improved. The Court rejects that contention; there is the evidence, which did not exclude non-combatant Sihks, of “improved human rights and (the) security situation in Sri Lanka” [UNHCR Guidelines (CB p.214 [62]); that “the greatly improved situation is still evolving” (Ibid), and that the situation had changed markedly since the war ended in May 2009 (CB 217.8).
There was evidence also from the UNHCR Guidelines that there was no need for protection based mechanisms for Sri Lankans of Tamil ethnicity originating from the north of the country (CB p.214 [62]).
There was therefore evidence to support the finding that the applicant would not be at risk upon return to Sri Lanka.
The Court accepts that the IMR did not find that there were categories of former LTTE members who would not be at risk upon return to Sri Lanka. The IMR considered that the applicant had been a non-combatant member of LTTE in making her finding of fact that the applicant would not be at risk due to any past LTTE activity (CB p.221.2). The fact that the applicant was a member of the LTTE between 1990 and 2002 (CB p.165 [70]) does not invalidate that assessment.
In NAHI (supra), 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”.
And at [11]:
“By s.420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s.424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that”.
As stated in Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at [7]:
“A decision-maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion by an applicant is not made out”.
As stated by the Federal Court of Australia in Lee (supra) 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”.
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”.
And at [29]:
“if the Tribunal made an error of fact, it is not a jurisdictional error if there is some evidence upon which the finding of fact could be made: Epenisa v Minister for Immigration and Multicultural Affairs [2007] FCA 80 at [36], Abebe v Commonwealth (1999) 197 CLR 510”.
A wrong finding of fact is not a jurisdictional error. Attorney General for the State of New South Wales v Quin (1990) 170 CLR 1 at 35-36 per Brennan J.
“Wednesbury unreasonableness leaves the merits of a decision or action unaffected unless the decision or action is such as to amount to an abuse of power: Nottinghamshire County Council v Secretary of State for the Environment”: Attorney General for the State of NSW v Quin (1990) 170 CLR 1 at 35.
The finding of fact sought to be challenged by the applicant was open to the IMR and is not amenable to review.
The applicant asserts that the IMR’s reasoning is inconsistent with country information, and inconsistent with the first IMRA on 18 March 2011. The Court accepts the submission for the first respondent that this is no more than a challenge to the merits, which is not available on judicial review. How an IMR assesses country information is a matter for that IMR. The assessment of country information and the weight given to it is a matter for the IMR (NAHI supra). The IMR was not required to take account of findings made in an earlier IMRA (NAQZ of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs; NAQY of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 898).
The applicant contends that there was no evidence to support the finding of the IMR that the applicant was not at risk from paramilitary groups (CB p.216 [69]). The applicant did not produce any evidence to support his claim that a Tamil of his age would be targeted by paramilitary groups (CB p.217.2).
In Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at 17 [40]:
“This Court has repeatedly said that the proceedings of the Tribunal are administrative in nature, or inquisitorial, and that there is an onus upon neither an applicant nor the Minister. It may be that the Minister will sometimes, perhaps often, have a greater capacity to ascertain and speak to conditions existing in another country, but that does not mean that the Minister is to bear a legal onus, just as, in those cases in which an applicant is the better informed, that applicant is not to be so burdened”.
Although “the concept of onus of proof is not appropriate to administrative inquiries and decision making” (Yao-Jing v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts.
The Court refers to the following decisions:
“The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out”.
A decision-maker is not required to make the applicant’s case for him or her: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all allegations made by the applicant: Randhawa v Minister for Immigration and Ethnic Affairs (1994) 52 FCR 437 at 451. Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567 at 596. Nagalingham v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 191.

The Court applies the following decision in another matter:
“The reasons that the applicant failed to establish this matter, includes that he failed to provide sufficient information about his claims to satisfy the Tribunal. The decisions of the Full Federal Court in NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 (Beaumont, Merkel and Hely JJ), NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 (French, Emmett and Dowsett JJ) and Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 (Black CJ, Sundberg and Bennett JJ) confirm that this is a valid reason for the application to be rejected”.
As stated in Selvadurai (supra) at [7]:
“A decision-maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion by an applicant is not made out”.
The IMR noted that the applicant had been able to negotiate his way out of detention by paying a bribe to the EPDP (Eelam People’s Democratic Party of Sri Lanka) members (CB p.216 [67]).
The IMR was not satisfied by the material that there was any real chance that the applicant would now be at risk from paramilitary groups, and that was so even if the EPDP named him as a former LTTE member or if he had been photographed in an LTTE uniform with a gun (CB p.216 [69] and 218[ [70]).
The applicant’s claims were rejected because he had failed to make his case [Yao-Jing and Prasad (supra)].
The applicant submits that there was no evidence to support the IMR’s finding that “major changes in his country no longer support the objective basis of his fear” (CB p.220 [79]). The Court rejects that submission for the reasons expressed above.
The Court notes that the IMR put to the applicant that country information indicated that the security situation had changed markedly since the end of the war in May 2009 (CB p.204 [39]-[41] and 217.8).
The Court repeats it’s reference to NAHI (supra) at [11].
“Both the choice and the assessment of the weight of” country information is a matter for the RRT. “The Court cannot substitute its own view of the material, even if it had a different view from that reached by the Tribunal”. (NAHI (supra) at [13])
The applicant’s migration agent agreed, with qualification, with the assessment of the country information:
“In response to the country information put to the claimant the agent submitted that the reports were all made after the war had ended and they describe a different picture of how things were when the claimant left Sri Lanka. The reports indicate the situation has changed significantly and that refugees returning from abroad are not at particular risk and that includes those of Tamil ethnicity. However as the claimant has noted these are not necessarily entirely correct because there is cover up by the government”. (CB p.205 [43]).
The IMRA is replete with references in country information about changes since the war ended (CB p.207 to 213 [47]-[58]) and paras.69 to 70, 72 to 77 and 79).
The applicant contends that there was no evidence on which the IMR could find that Tamils in the north and east were not specific targets, nor were returnees and failed asylum seekers who departed illegally, “especially if they have never had an active role in supporting the LTTE” (CB p.221 [79]).
Country information cited by the IMR indicates that in the absence of a high LTTE profile and/or criminal record, returnees were not likely to encounter significant problems or be detained for further investigation. The IMR stated that apart from the applicants illegal departure he had not committed any crime and was a low profile LTTE member ten years ago (CB p.220 [76] and [77]).
The IMR had regard to the applicant’s profile and to country information on the treatment of failed asylum seekers and returnees, and found that the procedure of greater scrutiny, criminal checks and interviews would not be applied in a discriminatory way to the applicant (CB p.220 [76]).
At the hearing on 13 November 2012, Mr Fairfield made the following additional submissions.
Mr Fairfield submits that the applicant was denied procedural fairness. Nothing was put to establish that claim. It is rejected.
Mr Fairfield submits that there was no evidence or probative material to support the findings by the IMR that there were categories of former LTTE members who would not be at risk upon return to Sri Lanka, and that the applicant was a member of those categories. The IMR found that there was evidence (which did not exclude non-combatant Sihks), of improved human rights and security in Sri Lanka.
The IMR did not find that there were categories of former LTTE members who would not be at risk; The IMR found that considering the passage of time, the applicant as a low profile non-combatant member of the LTTE, would not be at risk upon return to Sri Lanka. This was not a finding as to categories, but a consideration for the actual circumstance of the applicant. The IMR also considered the applicant’s claim that he would be persecuted because of his age (CB p.216 to 217 [69]).
Mr Fairfield referred to SFGB (supra), as to the lack of information upon which the IMR could draw the conclusion that it did, thereby establishing jurisdictional error. The Court has made a finding (supra) about the existence of evidence upon which the IMR made findings.
Mr Fairfield then complained that the two IMR’s made different findings based on the same material. It is for an IMR to make findings of fact based on the material before them. It is not open on judicial review to submit that an error of fact occurred because different findings of fact were made. Nor it is open to assert that the second IMR erred because she made different findings of fact than the first IMR.
Mr Fairfield submits that the conclusion of the first IMR shows that there is an absence of evidence to support the finding of the second IMR. Again that is an attempt to review a finding of fact. As found above, there was evidence before the IMR. The finding of fact is not amenable to review.
Mr Fairfield submits that the general finding of an improved situation for Tamils does not include “someone, who was for 12 years, a member of the Tamil Tiger”. The Court finds that it was open to the IMR to construe the evidence of an improved situation to include the applicant, whose circumstances were considered specifically by the IMR.

Submission for the First Respondent on 13 November 2012

The written contentions of the first respondent have already been taken into account.
Mr Mosley made oral submissions on 13 November 2012, and submits that there were no findings as to categories, or that the applicant was a member of a particular category. The Court accepts that submission; the IMR considered the particular circumstances of the applicant and did not categorise Tamils.
Mr Mosley referred to the decisions in VWBF, SZFWB and SFGB (supra) which have been considered above.
Mr Mosley referred to the decision of Hill J in NAQZ of 2002; NAQY of 2002 (supra) at [89] that the (Refugee Review) Tribunal is not required to take into account factual findings by a previous Tribunal or by the Minister’s delegate.
Mr Mosley distinguished the decision in NAQZ of 2002; NAQY of 2002 (supra) from the present case because in that case, there was no conclusion that was not open because there was evidence to the contrary.

Findings by the IMR

The IMR did not accept that paramilitary groups would target the claimant because of his age or because of his past association with the LTTE (CB p.216.10).
The IMR did not accept that the applicant would now be suspected of being an LTTE member (CB p.217.10).
The IMR was not satisfied that the applicant’s strong physique coupled with his past role as a non-combatant who was discharged in 2002, would now result in adverse interest from the Sri Lankan authorities.
The IMR considered the applicant’s claim that he could not express his political opinion in Sri Lanka (CB p.218.6).
The IMR considered the applicant’s claim that he would be differentiated from other returnees because he would be returning to Sri Lanka as a male Tamil who departed on a false passport (CB p.219.2).
The IMR considered the applicant’s claimed fear based on his Tamil ethnicity and membership of a particular social group “being a former member of the LTTE” (CB p.218.4).
The IMR considered all integers of the applicant’s claims.
The Court finds no denial of procedural fairness or failure to act judicially. There was evidence to support the findings of the IMR.
An error of law has not been established.
The Court finds that the IMRA is a privative clause decision that has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Migration Act 1958, there is no jurisdiction for this Court to interfere.
The application for judicial review is dismissed.

I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of F. Turner FM

Date: 7 December 2012