SZWBS v Minister for Immigration and Border Protection [2018] FCA 1779

SZWBS v Minister for Immigration and Border Protection [2018] FCA 1779

The Tribunal did not make jurisdictional error. It considered the appellant's religious claim against the 2014 DFAT report and found no real chance of harm for reasons of religion, including because most religious adherents in Sri Lanka could practise unmolested and the appellant was not within the identified higher-risk category. It also considered the failed asylum seeker claim using the country information and was entitled to find that any detention, investigation, monitoring or possible fine on return would result from non-discriminatory enforcement of Sri Lanka's Immigrants and Emigrants Act, a law of general application, and would not amount to persecution for a Convention reason or...

Jurisdiction
Australia
Judgment Date
14 November 2018
Procedural Posture
Appeal From the Federal Circuit Court Refusing Constitutional Writ Relief in Relation to a Protection Visa Refusal / Judgment on Appeal
Outcome
Appeal dismissed with costs.
Legal Topics
['protection Visa' 'jurisdictional Error' 'well Founded Fear of Persecution' 'complementary Protection' 'failed Asylum Seeker' 'religion' 'non Discriminatory Enforcement of a Law of General Application']
['administrative Law' 'migration Law' 'refugee Law' 'human Rights'] ['protection Visa' 'jurisdictional Error' 'well Founded Fear of Persecution' 'complementary Protection' 'failed Asylum Seeker' 'religion' 'non Discriminatory Enforcement of a Law of General Application']

Case Brief

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Procedural Posture

Appeal From the Federal Circuit Court Refusing Constitutional Writ Relief in Relation to a Protection Visa Refusal / Judgment on Appeal

Legal Issues

  1. 1 ["Whether the Tribunal made jurisdictional error by asking the wrong question when assessing the appellant's claim to fear persecution in Sri Lanka for reasons of religion." 'Whether the Tribunal failed to properly, genuinely and realistically consider whether the appellant would face serious or significant harm on return to Sri Lanka as a failed asylum seeker.' 'Whether the likely detention, investigation, monitoring or fine of the appellant on return to Sri Lanka would amount to persecution or significant harm.']

Ratio Decidendi

The Tribunal did not make jurisdictional error. It considered the appellant's religious claim against the 2014 DFAT report and found no real chance of harm for reasons of religion, including because most religious adherents in Sri Lanka could practise unmolested and the appellant was not within the identified higher-risk category. It also considered the failed asylum seeker claim using the country information and was entitled to find that any detention, investigation, monitoring or possible fine on return would result from non-discriminatory enforcement of Sri Lanka's Immigrants and Emigrants Act, a law of general application, and would not amount to persecution for a Convention reason or...

Court Disposition

Appeal dismissed with costs.

Orders

  • ['The appeal be dismissed.' "The appellant pay the first respondent's costs in the sum of $2300."]