CTS15 v Minister for Immigration and Border Protection [2018] FCA 938

CTS15 v Minister for Immigration and Border Protection [2018] FCA 938

The appeal failed because the Tribunal's erroneous reference to Article 157A of the Sri Lankan Constitution as a PTA provision was not material: it quoted the relevant terms, considered the appellant's position under the PTA, the I&E Act and any other Sri Lankan law, and rejected the factual basis for the appellant having any adverse profile or being of interest to Sri Lankan authorities. Leave to raise the s 438 certificate ground was refused because the point had been deliberately abandoned before the Federal Circuit Court, no explanation for the change of position was provided, and the first respondent would have acted differently had the point been pursued below.

Jurisdiction
Australia
Judgment Date
21 June 2018
Procedural Posture
Migration Appeal From Orders of the Federal Circuit Court Dismissing an Application for Constitutional Writs/judicial Review of a Tribunal Decision Affirming Refusal of a Protection Visa / Appeal to the Federal Court of Australia
Outcome
Appeal dismissed with costs; leave to raise the s 438 certificate ground refused.
Legal Topics
['protection Visa' 'judicial Review' 'jurisdictional Error' 'significant Harm' 'failed Asylum Seeker' 'section 438 Certificate' 'leave to Raise New Ground on Appeal' 'sri Lankan Tamil Returnee']
['migration' 'administrative Law' 'practice and Procedure'] ['protection Visa' 'judicial Review' 'jurisdictional Error' 'significant Harm' 'failed Asylum Seeker' 'section 438 Certificate' 'leave to Raise New Ground on Appeal' 'sri Lankan Tamil Returnee']

Case Brief

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Procedural Posture

Migration Appeal From Orders of the Federal Circuit Court Dismissing an Application for Constitutional Writs/judicial Review of a Tribunal Decision Affirming Refusal of a Protection Visa / Appeal to the Federal Court of Australia

Legal Issues

  1. 1 ["Whether the primary judge erred in rejecting the contention that the Tribunal misunderstood or failed to consider the appellant's claim that she faced harm under Article 157A of the Sri Lankan Constitution, the Prevention of Terrorism Act 1979 or other Sri Lankan laws." "Whether the appellant should be granted leave to raise on appeal a ground concerning the Tribunal's non-disclosure of a certificate under s 438 of the Migration Act 1958 (Cth) and associated documents."]

Ratio Decidendi

The appeal failed because the Tribunal's erroneous reference to Article 157A of the Sri Lankan Constitution as a PTA provision was not material: it quoted the relevant terms, considered the appellant's position under the PTA, the I&E Act and any other Sri Lankan law, and rejected the factual basis for the appellant having any adverse profile or being of interest to Sri Lankan authorities. Leave to raise the s 438 certificate ground was refused because the point had been deliberately abandoned before the Federal Circuit Court, no explanation for the change of position was provided, and the first respondent would have acted differently had the point been pursued below.

Court Disposition

Appeal dismissed with costs; leave to raise the s 438 certificate ground refused.

Orders

  • ['The appeal be dismissed.' "The appellant pay the first respondent's costs to be taxed in default of agreement."]