ADS15 v Minister for Immigration and Border Protection [2018] FCA 233

ADS15 v Minister for Immigration and Border Protection [2018] FCA 233

Leave to raise the first appeal ground was refused because it was an abandoned ground from below and had no reasonable prospects: the Tribunal had not accepted that a Convention reason was the essential or significant reason for any jail time or fine, and found the penalties were imposed to prevent unregulated departures. The second ground failed because the Tribunal was aware of and complied with Direction No. 56, the relevant guidelines were not prescriptive, and the Tribunal did not find knowing infliction of humiliation, pain or suffering by Sri Lankan authorities. The primary judge made no error, so the appeal was dismissed.

Jurisdiction
Australia
Judgment Date
07 March 2018
Procedural Posture
Migration Appeal From Dismissal of Judicial Review of Protection Visa Refusal / Appeal to the Federal Court of Australia From Orders of the Federal Circuit Court of Australia; Appeal Dismissed
Outcome
Appeal dismissed; appellant ordered to pay the first respondent's costs.
Legal Topics
['protection Visa' 'complementary Protection' 'significant Harm' 'ministerial Direction No. 56' 'failed Asylum Seekers' 'illegal Departure From Sri Lanka' 'judicial Review' 'jurisdictional Error']
['migration' 'administrative and Constitutional Law and Human Rights'] ['protection Visa' 'complementary Protection' 'significant Harm' 'ministerial Direction No. 56' 'failed Asylum Seekers' 'illegal Departure From Sri Lanka' 'judicial Review' 'jurisdictional Error']

Case Brief

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Procedural Posture

Migration Appeal From Dismissal of Judicial Review of Protection Visa Refusal / Appeal to the Federal Court of Australia From Orders of the Federal Circuit Court of Australia; Appeal Dismissed

Legal Issues

  1. 1 ['Whether the primary judge erred in considering significant harm and the consequences of the appellant spending up to a fortnight in jail and being fined under the Immigrants and Emigrants Act.' 'Whether leave should be granted to raise on appeal a ground abandoned before the Federal Circuit Court.' 'Whether the Tribunal failed to comply with Ministerial Direction No. 56.' "Whether intention to inflict harm could be inferred from Sri Lankan prison conditions and the authorities' knowledge or indifference."]

Ratio Decidendi

Leave to raise the first appeal ground was refused because it was an abandoned ground from below and had no reasonable prospects: the Tribunal had not accepted that a Convention reason was the essential or significant reason for any jail time or fine, and found the penalties were imposed to prevent unregulated departures. The second ground failed because the Tribunal was aware of and complied with Direction No. 56, the relevant guidelines were not prescriptive, and the Tribunal did not find knowing infliction of humiliation, pain or suffering by Sri Lankan authorities. The primary judge made no error, so the appeal was dismissed.

Court Disposition

Appeal dismissed; appellant ordered to pay the first respondent's costs.

Orders

  • ['The appeal be dismissed.' "The appellant pay the first respondent's costs."]