CJO15 v Minister for Immigration - [2018] FCCA 446

FEDERAL CIRCUIT COURT OF AUSTRALIA

CJO15 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 446

Catchwords:
MIGRATION – Judicial Review of decision of Administrative Appeals Tribunal (Tribunal) affirming decision not to grant Protection visa – whether Tribunal correctly understood or applied the “real chance test” – whether in assessing the risk of future harm the Tribunal was required to incorporate into that assessment the probability of claimed past events having occurred – no jurisdictional error.

PRACTICE AND PROCEDURE – Application for leave to rely on grounds contained in amended application filed without leave and on additional grounds contained in written submissions – whether permitting the applicant to rely on proposed grounds would be futile – leave to rely on proposed grounds refused.

Legislation:

Migration Act 1958 (Cth), ss.422B(3), 424A

Administrative Appeals Tribunals Act 1975 (Cth), ss.19D, 414

Cases cited:

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63
BFK15 v Minister for Immigration & Anor [2017] FCCA 1933
Medich v Bentley-Smythe Pty Ltd [2010] FCA 494
Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719
SZCOS v Minister for Immigration & Citizenship [2008] FCA 570
SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34
SZTFI & Anor v Minister for Immigration & Anor [2014] FCCA 740

Applicant:

CJO15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 3066 of 2015

Judgment of:

Judge Manousaridis

Hearing date:

7 March 2017

Date of Last Submission:

7 March 2017

Delivered at:

Sydney

Delivered on:

2 March 2018

REPRESENTATION

Solicitor for the Applicant:

Mr S Tambimuttu of Stephen Hodges Solicitors

Solicitor for the First Respondent:

Mr T Galvin of MinterEllison

ORDERS

The applicant is not granted leave to:
(a)rely on grounds 2 and 3 of the amended application filed on 20 February 2017; and
(b)amend the application by adding the grounds identified as grounds 4 and 5 in the applicant’s written submissions filed on 24 February 2017.
The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3066 of 2015

CJO15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant, a national of Sri Lanka, applies for judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa).

Claims for Protection

In his irregular maritime entry interview[1] the applicant claimed his older brother, N, was a newspaper reporter. In 2008 the CID (Criminal Investigation Department) caught N on his way home, took him to the applicant’s home and, after the CID provided a letter permitting the applicant to visit N, the CID took him to a police station. N was released after the applicant’s family obtained the assistance of a politician. “

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FCCA 446
Decision Date: 2 March 2018

CaseChat Overview and Summary

The applicant, CJO15, sought judicial review of a decision by the Administrative Appeals Tribunal (the Tribunal) which affirmed the Minister for Immigration's refusal to grant a protection visa. The central dispute concerned whether the Tribunal had correctly understood and applied the "real chance test" when assessing the applicant's risk of future harm.

The primary legal issue before the court was whether the Tribunal, in its assessment of the risk of future harm to the applicant, was required to incorporate into that assessment the probability of claimed past events having occurred. The applicant also sought leave to rely on grounds contained in an amended application filed without leave and additional grounds raised in written submissions.

Justice Manousaridis found that the Tribunal was not required to incorporate the probability of past events into its assessment of future risk. The court reasoned that the "real chance test" requires an assessment of whether there is a real chance of future harm, irrespective of the precise probability of past events. The court also refused leave to rely on the proposed grounds, concluding that permitting the applicant to do so would be futile.

No orders were made as the court determined there was no jurisdictional error.

Orders