AUE15 v Minister for Immigration and Border Protection

This appeal is from a decision of the Federal Circuit Court, which dismissed the appellant’s application for constitutional writ relief against a decision of the Refugee Review Tribunal that affirmed the Minister’s delegate’s decision not to grant the appellant a protection visa. The appellant, a citizen of Sri Lanka, applied for a protection visa claiming political associations, race and religion as grounds for protection. The Tribunal rejected all of his claim bases for protection, both under the Refugees Convention and in respect of his claims for complementary protection under section 36(2)(a) and (aa) of the Migration Act 1958 (Cth). The appellant argues that the Tribunal failed to engage intellectually with the PAM3 guidelines and did not address whether the penalties for illegal departure from Sri Lanka amounted to significant harm.

The legal issues before the court were whether the Tribunal was required to engage intellectually with the PAM3 guidelines and whether the Tribunal failed to address whether the exercise by the Parliament of Sri Lanka in enacting penalties for illegal departure from that country amounted to significant harm. The court found that the Tribunal was not obliged to show in its reasons an active intellectual engagement with the terms of the guidelines. Furthermore, the court held that the Tribunal was not required to address whether the penalties for illegal departure from Sri Lanka amounted to significant harm.

The court held that clauses 2 and 3 of Direction 56 required a decision-maker in the position of the Tribunal when performing its functions or exercising its powers, relevantly in a review of a decision to refuse a protection visa, first, to take account of the PAM3 guidelines “to the extent they are relevant to the decision under consideration” (cl 2), and, secondly, DFAT had prepared a country information assessment expressly for protection status determination purposes and where that assessment was available to the decision-maker, the decision-maker “must take into account that assessment where relevant in making their decision” (cl 3). The court found that the Tribunal had considered the PAM3 guidelines and the country information assessment and had provided detailed reasons for its decision. The court also held that the Tribunal was not required to address whether the penalties for illegal departure from Sri Lanka amounted to significant harm, as the appellant had not made such a claim before the Tribunal.

The court dismissed the appeal and ordered that the appellant pay the first respondent’s costs.