SZDWR v Minister For Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 36

SZDWR v Minister For Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 36

The Tribunal addressed the correct question by considering whether Sri Lanka was able and willing to provide reasonably effective protection against harm from the LTTE and corrupt police officers. Because the Tribunal found that Sri Lanka did not condone crimes by police officers, that avenues of redress and protection existed, and that the appellants had not availed themselves of them, the appellants did not show that their unwillingness to seek State protection was justified. The higher or different standard applied in VRAW was not supported by authority and should not be followed.

Jurisdiction
Australia
Judgment Date
21 March 2006
Procedural Posture
Appeal From a Single Judge of the Federal Court of Australia Concerning Judicial Review of a Refugee Review Tribunal Protection Visa Decision / Full Court Appeal; Application for Leave to Amend Notice of Appeal
Outcome
Leave to amend the Notice of Appeal was granted only for grounds 4(a) and 5; the appeal was dismissed with costs, including costs of the Notice of Contention.
Legal Topics
['protection Visa' 'judicial Review' 'well Founded Fear of Persecution' 'state Protection' 'rogue State Officials' 'ltte' 'police Corruption' 'leave to Raise New Grounds on Appeal']
['immigration' 'administrative Law' 'refugee Law'] ['protection Visa' 'judicial Review' 'well Founded Fear of Persecution' 'state Protection' 'rogue State Officials' 'ltte' 'police Corruption' 'leave to Raise New Grounds on Appeal']

Case Brief

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Procedural Posture

Appeal From a Single Judge of the Federal Court of Australia Concerning Judicial Review of a Refugee Review Tribunal Protection Visa Decision / Full Court Appeal; Application for Leave to Amend Notice of Appeal

Legal Issues

  1. 1 ['Whether leave should be granted to amend the Notice of Appeal to raise new grounds.' 'Whether the Tribunal applied the correct test in assessing adequate State protection where harm was feared from the LTTE and from corrupt police officers.' 'Whether VRAW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1133 should be followed in requiring a different standard for persecution by rogue state agents.' 'Whether available Sri Lankan mechanisms for redress and protection were sufficient to defeat a claimed well-founded fear of persecution.']

Ratio Decidendi

The Tribunal addressed the correct question by considering whether Sri Lanka was able and willing to provide reasonably effective protection against harm from the LTTE and corrupt police officers. Because the Tribunal found that Sri Lanka did not condone crimes by police officers, that avenues of redress and protection existed, and that the appellants had not availed themselves of them, the appellants did not show that their unwillingness to seek State protection was justified. The higher or different standard applied in VRAW was not supported by authority and should not be followed.

Court Disposition

Leave to amend the Notice of Appeal was granted only for grounds 4(a) and 5; the appeal was dismissed with costs, including costs of the Notice of Contention.

Orders

  • ['The appellants have leave to amend their Notice of Appeal in terms of grounds 4(a) and 5 as referred to in the reasons of the Court.' 'The appeal be dismissed.' "The appellants pay the respondents' costs of the appeal."]