KYRLENKO v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS [2001] FCA 653

KYRLENKO v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS [2001] FCA 653

The application was dismissed because the Tribunal's relevant conclusions were factual findings or legally correct, and s 476(1)(g) did not apply: the Tribunal was not required to make a positive finding that the applicant was not a member of a particular social group, nor did it base its decision on the existence of a particular fact that did not exist; it was simply not satisfied of the claimed facts. No reviewable error under s 476 of the Migration Act 1958 (Cth) was shown.

Jurisdiction
Australia
Judgment Date
15 May 2001
Procedural Posture
Application for Review of a Refugee Review Tribunal Decision Upholding Refusal of a Protection Visa / Federal Court Application Dismissed
Outcome
Application dismissed with costs.
Legal Topics
['protection Visa' 'refugee Review Tribunal' 'judicial Review' 'no Evidence Ground' 'particular Social Group' 'persecution' 'extortion by Criminals']
['migration Law' 'administrative Law' 'refugee Law'] ['protection Visa' 'refugee Review Tribunal' 'judicial Review' 'no Evidence Ground' 'particular Social Group' 'persecution' 'extortion by Criminals']

Case Brief

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Procedural Posture

Application for Review of a Refugee Review Tribunal Decision Upholding Refusal of a Protection Visa / Federal Court Application Dismissed

Legal Issues

  1. 1 ['Whether the Refugee Review Tribunal erred in finding that extortion suffered by the applicant in Ukraine did not amount to persecution for a Convention reason.' "Whether the applicant's claimed group could be a particular social group if defined only by reference to members suffering extortion demands." "Whether s 476(1)(g) of the Migration Act 1958 (Cth) applied on the basis that there was no evidence or material to justify the Tribunal's decision."]

Ratio Decidendi

The application was dismissed because the Tribunal's relevant conclusions were factual findings or legally correct, and s 476(1)(g) did not apply: the Tribunal was not required to make a positive finding that the applicant was not a member of a particular social group, nor did it base its decision on the existence of a particular fact that did not exist; it was simply not satisfied of the claimed facts. No reviewable error under s 476 of the Migration Act 1958 (Cth) was shown.

Court Disposition

Application dismissed with costs.

Orders

  • ['The application be dismissed.' "The applicant pay the respondent's costs of the proceeding."]