AJL16 v Minister for Immigration and Border Protection [2019] FCA 255

AJL16 v Minister for Immigration and Border Protection [2019] FCA 255

Leave to amend was granted because the appellant acted promptly after obtaining representation, was unrepresented below, faced serious consequences, and the proposed ground was arguable. However, the appeal was dismissed because the appellant did not make, directly or through his representatives, a separate claim that he faced a real chance or real risk of sexual violence during remand in Sri Lanka. The references to sexual violence in the country information and RILC submissions were made in the context of claims based on actual or imputed LTTE association, which the Tribunal rejected. The Tribunal was not required to search the country information for a potential claim not squarely...

Jurisdiction
Australia
Judgment Date
05 March 2019
Procedural Posture
Migration Appeal From Federal Circuit Court Dismissal of Judicial Review Application Concerning Refusal of a Protection Visa / Appeal and Application for Leave to Amend Notice of Appeal
Outcome
Leave to amend notice of appeal granted; appeal dismissed with costs.
Legal Topics
['protection Visa' 'complementary Protection' 'jurisdictional Error' 'statutory Review Function' 'sexual Violence Risk in Detention' 'sri Lankan Tamil Returnee' 'illegal Departure From Sri Lanka' 'leave to Amend Notice of Appeal' 'costs']
['migration' 'administrative Law' 'practice and Procedure' 'human Rights'] ['protection Visa' 'complementary Protection' 'jurisdictional Error' 'statutory Review Function' 'sexual Violence Risk in Detention' 'sri Lankan Tamil Returnee' 'illegal Departure From Sri Lanka' 'leave to Amend Notice of Appeal' 'costs']

Case Brief

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Procedural Posture

Migration Appeal From Federal Circuit Court Dismissal of Judicial Review Application Concerning Refusal of a Protection Visa / Appeal and Application for Leave to Amend Notice of Appeal

Legal Issues

  1. 1 ['Whether the appellant should have leave to rely on an amended notice of appeal raising a ground not pressed before the Federal Circuit Court.' 'Whether the Administrative Appeals Tribunal failed to perform its statutory review function by not specifically considering whether the appellant faced a real chance or real risk of sexual violence while detained in Sri Lanka.' 'Whether references in country information and submissions to sexual violence amounted to a claim that the Tribunal was required to determine.' "Whether the Tribunal's general findings about serious harm and significant harm during remand in Sri Lanka were sufficient in the circumstances."]

Ratio Decidendi

Leave to amend was granted because the appellant acted promptly after obtaining representation, was unrepresented below, faced serious consequences, and the proposed ground was arguable. However, the appeal was dismissed because the appellant did not make, directly or through his representatives, a separate claim that he faced a real chance or real risk of sexual violence during remand in Sri Lanka. The references to sexual violence in the country information and RILC submissions were made in the context of claims based on actual or imputed LTTE association, which the Tribunal rejected. The Tribunal was not required to search the country information for a potential claim not squarely...

Court Disposition

Leave to amend notice of appeal granted; appeal dismissed with costs.

Orders

  • ['The appellant have leave to file and serve an amended notice of appeal in the form of the notice of appeal filed on 1 November 2018.' 'The appeal be dismissed.' "The appellant pay the first respondent's costs of and incidental to this appeal, fixed in the lump sum of $6,200.70."]