ASD16 v Minister for Immigration and Border Protection [2018] FCA 1165

ASD16 v Minister for Immigration and Border Protection [2018] FCA 1165

The Federal Court held that the Federal Circuit Court did not err. The Tribunal had put the appellant on notice of the DFAT country information about bail and the need for a family guarantor, and the appellant and his migration agent had an opportunity to raise any concern. The Tribunal considered the appellant's claims and country information about follow-up and torture after return, and it was not required to refer to every report. Read as a whole, the Tribunal's reasons showed that it understood and applied the correct real chance and real risk tests notwithstanding its use of the word "would" in parts of its reasons.

Jurisdiction
Australia
Judgment Date
08 August 2018
Procedural Posture
Migration Appeal Concerning Refusal of a Protection Visa / Appeal From a Federal Circuit Court Judgment Dismissing an Application for Judicial Review of a Refugee Review Tribunal Decision
Outcome
The appeal was dismissed with costs.
Legal Topics
['protection Visa' 'judicial Review' 'jurisdictional Error' 'relevant Considerations' 'refugee Review Tribunal Reasons' 'real Chance of Persecution' 'real Risk of Significant Harm' 'complementary Protection' 'sri Lankan Failed Asylum Seeker Returnees']
['migration Law' 'administrative Law'] ['protection Visa' 'judicial Review' 'jurisdictional Error' 'relevant Considerations' 'refugee Review Tribunal Reasons' 'real Chance of Persecution' 'real Risk of Significant Harm' 'complementary Protection' 'sri Lankan Failed Asylum Seeker Returnees']

Case Brief

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Procedural Posture

Migration Appeal Concerning Refusal of a Protection Visa / Appeal From a Federal Circuit Court Judgment Dismissing an Application for Judicial Review of a Refugee Review Tribunal Decision

Legal Issues

  1. 1 ['Whether the Tribunal committed jurisdictional error by failing to consider whether a family member would be willing and able to act as guarantor for bail on return to Sri Lanka.' 'Whether the Tribunal failed to consider the risk that the appellant would be followed up and tortured in his home area as part of a general pattern of abuse.' 'Whether the Tribunal misapplied the statutory tests by asking whether the appellant would suffer harm rather than whether there was a real chance of persecution or a real risk of significant harm.']

Ratio Decidendi

The Federal Court held that the Federal Circuit Court did not err. The Tribunal had put the appellant on notice of the DFAT country information about bail and the need for a family guarantor, and the appellant and his migration agent had an opportunity to raise any concern. The Tribunal considered the appellant's claims and country information about follow-up and torture after return, and it was not required to refer to every report. Read as a whole, the Tribunal's reasons showed that it understood and applied the correct real chance and real risk tests notwithstanding its use of the word "would" in parts of its reasons.

Court Disposition

The appeal was dismissed with costs.

Orders

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