FEDERAL CIRCUIT COURT OF AUSTRALIA
| AWP16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 955 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – Protection visa application – claim that the Administrative Appeals Tribunal committed jurisdictional error in not giving to the Applicant information for the purposes of s.424A or s.424AA of the Migration Act 1958 and inadequate interpretation at hearing before Administrative Appeals Tribunal – no jurisdictional error established – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.424, 424A |
| Cases cited: Minister for Immigration v Brar (2012) 201 FCR 240 |
| Applicant: | AWP16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 920 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 27 April 2017 |
| Delivered at: | Sydney |
| Delivered on: | 23 April 2018 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the Respondents: | Ms N. Johnson |
| Solicitors for the Respondents: | Mills Oakley |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this Court on 19 April 2016 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 920 of 2016
| AWP16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant in this proceeding is a male citizen of Sri Lanka aged 36 years, having been born on 1 July 1981.
By Application filed in this Court on 19 April 2016 he seeks to quash and have redetermined a decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 24 March 2016 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 10 July 2013 refusing to grant to him a Protection (Class XA) visa (Protection visa).
The Applicant arrived on Christmas Island by boat from Sri Lanka on 20 June 2012 as an irregular maritime arrival.
The Applicant was a party to an Irregular Maritime Arrival Entry Interview on 25 August 2012 (entry interview) in which he claimed:
a)to have no guarantee for his life in Sri Lanka, there are so many problems and armed groups kidnap many people in white vans;
b)he was kidnapped on 4 April 2012 while he was about 100m from his house after having attended a temple. A white van approached and he was dragged into the van by about 5 people and he did not know why he was kidnapped, because “they kidnap everyone”;
c)he then went to hospital…
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- Case
- [2018] FCCA 955
- Decision Date
CaseChat Overview and Summary
The central legal issues before the Court were whether the AAT had engaged in jurisdictional error by not affording the applicant the procedural fairness required by sections 424A and 424AA of the *Migration Act 1958* (Cth), and whether the Tribunal's interpretation of the applicant's claims amounted to such an error. These sections relate to the obligation of the AAT to notify applicants of adverse information and provide them with an opportunity to respond. The applicant's claims for protection were based on his ethnicity as an ethnic Tamil from Sri Lanka, his alleged harassment and assault by Sri Lankan government forces and other individuals, and his fear of persecution upon return to Sri Lanka due to his ethnicity and past experiences.
Dowdy J found that no jurisdictional error had been established. The Court reasoned that the applicant's factual claims, as detailed in his statutory declaration, were considered by the AAT. The judgment referenced the criteria for granting a protection visa as outlined in section 36 of the *Migration Act 1958* (Cth), which includes having a well-founded fear of persecution based on specified grounds or meeting the complementary protection criterion where there are substantial grounds for believing a real risk of significant harm upon removal from Australia. The Court concluded that the applicant had not demonstrated that the AAT failed to provide him with the necessary information or that its interpretation of his claims constituted a jurisdictional error.
Consequently, the application for judicial review was dismissed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The Applicant then lodged the Protection visa application the subject of this proceeding on 29 October 2012. In his Statutory Declaration of 25 October 2012 (Statutory Declaration) which formed part of his Protection visa application the Applicant made the following factual claims:a)he is an ethnic Tamil and a Hindu, born in the Batticaloa District of Sri Lanka;b)he fled Sri Lanka in 2002 “due to the ethnic conflict in Sri Lanka” and travelled to Dubai on a work visa. He returned to Sri Lanka in 2008 as his parents had informed him that the situation in the east of Sri Lanka had improved slightly;c)between July 2008 and February 2010 he was constantly harassed, physically assaulted and beaten by the STF of the Sri Lankan Government due to his Tamil ethnicity and perceived links to the Liberation Tigers of Tamil Eelam (LTTE) political group;d)during the same period he was returning from a market and was stopped by STF personnel who took him inside their camp and beat him and other Tamil males severely and the STF subsequently handed him over to the police who locked him up inside the Police Station for one night and released him the following day; e)as the situation was getting worse in Sri Lanka, in February 2010 he left Sri Lanka and travelled to Dubai again, returning to Sri Lanka on 1 June 2011 because his parents insisted that he get married; f)on 1 April 2012 after returning home from the temple he was abducted by unknown persons travelling in a white van who spoke Sinhalese. He was blindfolded, bound and beaten. On 3 April 2012 while recovering from the beating he was threatened by men speaking Tamil who asked him to give them money or they would cause him physical harm. He went into hiding at his sister’s house, and in May 2012 fled Sri Lanka; andg)he feared returning to Sri Lanka due to his ethnicity and he would be at risk of being targeted by Tamil paramilitary groups by reason of being a Tamil and because he had fled Sri Lanka illegally and had sought asylum in Australia. A convenient summary of the grounds and criteria for the grant of a Protection visa can be found in the judgment of Wigney J in SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574 at [5] – [7] as follows:[5]The criteria for the grant of a protection visa are well known. At the time the appellant applied for a protection visa, s 36(2)(a) of the Migration Act 1958(Cth) provided that a criterion for a protection visa was that the appellant was a non-citizen in Australia in respect of whom the Minister was satisfied Australia had protection obligations under the Refugees Convention. In simple terms, Australia has protection obligations under the Refugees Convention in respect of a person who is outside their country of origin and who is unable or unwilling to avail themselves of the protection of that country, or to return there, on account of them having a well-founded fear of persecution based on reasons of race, religion, nationality, membership of a particular social group, or political opinion.[6]Section 36(2)(aa) of the Act provided an alternative criterion known generally as the complementary protection criterion. A person met the complementary protection criterion if the Minister was satisfied that Australia had protection obligations because the Minister had substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there was a real risk that the non-citizen would suffer significant harm.[7]The remaining subsections of s 36 and subdivision AL of the Act contained additional provisions about protection visas, including provisions that defined or explained various expressions used in s 36(2)(a) and (aa), such as “significant harm” and “persecution”.