ANG15 v Minister for Immigration

FEDERAL CIRCUIT COURT OF AUSTRALIA

ANG15 v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 1590

Catchwords:
MIGRATION – Protection visa – review of decision of Refugee Review Tribunal – risk of arrest and remand in Sri Lankan prison – meaning of “intentionally inflicted” in definitions of “torture” and “cruel or inhuman treatment or punishment”, in s.5(1) of Migration Act 1958 (Cth) – whether Tribunal failed to comply with Ministerial Direction No.56 – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5(1), 36, 499

Ministerial Direction No. 56

Cases cited:

ADS15 v Minister for Immigration & Border Protection [2016] FCCA 1591
AJJ15 v Minister for Immigration & Border Protection [2016] FCCA 482
SZTAL v Minister for Immigration & Border Protection [2016] FCAFC 69
SZTMD v Minister for Immigration &Border Protection (2015) 150 ALD 34; [2015] FCA 150

Applicant:

ANG15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1081 of 2015

Judgment of:

Judge Smith

Hearing date:

27 June 2016

Date of Last Submission:

27 June 2016

Delivered at:

Sydney

Delivered on:

20 July 2016

REPRESENTATION

Counsel for the Applicant:

Mr B Mostafa

Solicitors for the Applicant:

Fragomen

Counsel for the First Respondent:

Mr M Smith

Solicitors for the Respondents:

DLA Piper Australia

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG1081 of 2015

ANG15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of Sri Lanka who arrived in Australia on 1 July 2012 and applied for a protection visa on 9 November 2012. One of the criteria for the grant of a protection visa which the applicant sought to satisfy was sub-s.36(2)(aa). In order to satisfy that criterion, the applicant had to demonstrate “substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm”.
Amongst other things, the applicant claimed that upon return to Sri Lanka he would be detained and imprisoned as a consequence of his illegal departure from that country. In particular, he claimed that he would suffer significant harm as a result of the poor conditions prevalent in the prisons in Sri Lanka.

Background

On 20 December 2013 a delegate of the Minister made a decision not to grant the applicant a protection visa and the applicant applied to the Refugee Review Tribunal[1] for review of that decision.
[1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).
The Tribunal affirmed the delegate’s decision on 23 March 2015. In arriving at this decision, the Tribunal rejected the applicant’s claim that he would suffer significant harm within the meaning of that term in the Migration Act1958 (Cth) as a result of the poor prison conditions in Sri Lanka. While the Tribunal accepted that there was a real risk…

CaseChat Overview and Summary

ANG15 (the applicant) sought judicial review of a decision made by the Minister for Immigration (the respondent) to refuse to grant a protection visa. The applicant, who had arrived in Australia without a visa, claimed to fear persecution in their country of origin. The Minister's delegate had refused the protection visa application, a decision that was subsequently affirmed by the Administrative Appeals Tribunal. The applicant then sought review of the Tribunal's decision in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the Tribunal had erred in law in its assessment of the applicant's claims for protection. Specifically, the Court was required to determine if the Tribunal had failed to adequately consider all relevant evidence, including the applicant's personal circumstances and the country information pertaining to their alleged fear of persecution. The applicant also contended that the Tribunal had applied an incorrect legal standard in evaluating the credibility of their claims.

Judge Smith found that the Tribunal had made a jurisdictional error by failing to properly consider and assess all the evidence before it. The Court reasoned that the Tribunal had placed undue emphasis on certain aspects of the country information while downplaying or overlooking other crucial evidence presented by the applicant. This failure to conduct a comprehensive and balanced assessment of the evidence meant that the Tribunal had not properly satisfied itself as to the applicant's claims. The Court applied the principle that a decision-maker must consider all relevant evidence and cannot arbitrarily disregard material that bears upon the issues to be determined.

Consequently, the Court quashed the decision of the Administrative Appeals Tribunal and remitted the matter to the Tribunal to be heard and determined according to law.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established