DZAAI v Minister for Immigration and Citizenship

[2012] FCA 1151

FEDERAL COURT OF AUSTRALIA

DZAAI v Minister for Immigration and Citizenship [2012] FCA 1151

Citation:		DZAAI v Minister for Immigration and Citizenship [2012] FCA 1151
Appeal from:		Application for leave to appeal: DZAAI V Minister for Immigration & Anor [2011] FMCA 886
Parties:		DZAAI v MINISTER FOR IMMIGRATION AND CITIZENSHIP and RON WITTON IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER
File number:		NTD 1 of 2012
Judge:		DOWSETT J
Date of judgment:		3 May 2012
Date of hearing:		3 May 2012
Place:		Darwin
Division:		GENERAL DIVISION
Category:		No Catchwords
Number of paragraphs:		5
Counsel for the Applicant:	Ms N Karapanagiotdis
Solicitor for the Applicant:	Northern Territory Legal Aid Commission
Counsel for the First Respondent:	Mr T Anderson
Solicitor for the First Respondent:	Australian Government Solicitor
No appearance for the Second Respondent, at the hearing, he having indicated that he would abide any order of the Court, save as to costs.

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION	NTD 1 of 2012

BETWEEN:

DZAAI
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

RON WITTON IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER
Second Respondent

JUDGE:	DOWSETT J
DATE OF ORDER:	3 MAY 2012
WHERE MADE:	DARWIN

THE COURT ORDERS THAT:

1.Leave is given to file a notice of appeal raising grounds 1-6 of draft but not grounds 7 and 8.  Time is extended accordingly; and

2.judgment is reserved.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION	NTD 1 of 2012

BETWEEN:

DZAAI
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

RON WITTON IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER
Second Respondent

JUDGE:	DOWSETT J
DATE:	3 MAY 2012
PLACE:	DARWIN

REASONS FOR JUDGMENT

1. The applicant wishes to apply for a protection visa.  He may not do so unless the first respondent (the Minister”) permits him to do so.  He has been subject to an unfavourable Refugee Status Assessment (the ‘RSA”) and an unsuccessful Independent Merits Review (the “IMR”).  He has unsuccessfully sought review of the IMR in the Federal Magistrates Court and now seeks to appeal from that decision.  However he failed to lodge his notice of appeal within the prescribed time and seeks an extension of time in which so to do.  The respondent does not object to such an extension, save as to two of the proposed grounds which were not raised at first instance.  The proposed notice of appeal is annexure CO1 to the affidavit of Mr O’Connor, filed on 24 April 2012.  The challenged grounds are grounds 7 and 8.  The applicant accepts that they were not raised before the Federal Magistrate.  Generally, it would follow that they should not be raised on appeal, unless the interests of justice demonstrate otherwise.

2. The two disputed grounds of appeal are:

   7.The [Reviewer] asked itself the wrong question and thereby fell into error by focusing upon the outcome of the likely interrogation of the [applicant] upon return to Sri Lanka rather than the process of such an interrogation.

   8.        The [Reviewer] failed to consider an integer of the [applicant’s] claims, namely whether he would be at risk of serious harm for having left the country illegally.

3. Both proposed grounds arise out of paras 42 to 47 of the IMR.  Clearly, the Reviewer was not satisfied that the applicant would suffer serious harm in the course of any interrogation upon his return to Sri Lanka.  It cannot be said, as is alleged in proposed ground 7, that the reviewer failed to consider whether the applicant would suffer such harm.  That assertion was considered and rejected.

4. Proposed ground 8 concerns the fact that the applicant left Sri Lanka illegally.  That matter is addressed in paras 44 and 45 of the reasons.  Any fear of harm as a result of that matter is rejected in paras 46 and 47.

5. I grant leave to appeal limited to grounds 1 to 6 of the draft notice of appeal.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:       6 August 2013