ALW15 v Minister for Immigration and Border Protection [2018] FCA 190

ALW15 v Minister for Immigration and Border Protection [2018] FCA 190

The Tribunal was not required to make the postulated enquiry of the appellant's previous employer as the critical factor was not the employer's activity but the lack of ongoing interest or threat to the appellant. The Tribunal also considered the risk of persecution or significant harm after release from detention in Sri Lanka and found no real chance or risk for the appellant due to lack of profile or affiliation with LTTE, addressing both categories of returnees. There was no jurisdictional error or failure to review.

Parties
Appellant: ALW15; First Respondent: Minister for Immigration and Border Protection; Second Respondent: Administrative Appeals Tribunal
Jurisdiction
Australia
Judgment Date
28 February 2018
Procedural Posture
Appeal / Judgment
Outcome
appeal dismissed
Legal Topics
Procedural Fairness, Jurisdictional Error, Protection Visa, Review of Tribunal Decision
Migration Law Administrative Law Procedural Fairness Jurisdictional Error Protection Visa Review of Tribunal Decision

Case Brief

Summary, issues, holding and outcome

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Parties

ALW15

Appellant

Minister for Immigration and Border Protection

First Respondent

Administrative Appeals Tribunal

Second Respondent

Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 Whether the Refugee Review Tribunal denied the appellant procedural fairness or breached obligations under ss 424 or 425 of the Migration Act 1958 (Cth)
  2. 2 Whether the Tribunal failed to make an obvious inquiry about a critical fact
  3. 3 Whether there was constructive failure by the Tribunal to exercise jurisdiction

Ratio Decidendi

The Tribunal was not required to make the postulated enquiry of the appellant's previous employer as the critical factor was not the employer's activity but the lack of ongoing interest or threat to the appellant. The Tribunal also considered the risk of persecution or significant harm after release from detention in Sri Lanka and found no real chance or risk for the appellant due to lack of profile or affiliation with LTTE, addressing both categories of returnees. There was no jurisdictional error or failure to review.

Court Disposition

appeal dismissed

Orders

  • The appeal is dismissed.
  • The appellant is to pay the costs of the First Respondent, to be taxed in default of agreement.