ACB16 v Minister for Immigration and Border Protection [2017] FCA 1312

FEDERAL COURT OF AUSTRALIA

ACB16 v Minister for Immigration and Border Protection [2017] FCA 1312 Appeal from: ACB16 v Minister for Immigration & Anor [2017] FCCA 1442

File number: NSD 1248 of 2017

Judge: ROBERTSON J

Date of judgment: 9 November 2017

Legislation: Migration Act 1958 (Cth) Federal Court Rules 2011 (Cth) r 36.75

Date of hearing: 9 November 2017

Registry: New South Wales

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: No Catchwords

Number of paragraphs: 21

Counsel for the Appellant: The Appellant did not appear

Solicitor for the First Respondent: Mr R White of Mills Oakley

Counsel for the Second Respondent: The Second Respondent submitted save as to costs

ORDERS NSD 1248 of 2017

BETWEEN: ACB16 Appellant

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE: ROBERTSON J DATE OF ORDER: 9 NOVEMBER 2017

THE COURT ORDERS THAT:

1. Pursuant to r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth), the appeal is dismissed. 2. The appellant pay the costs of the first respondent, as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ROBERTSON J:

Introduction 1 The appellant is a male citizen of Sri Lanka, born in November 1989. He is of Tamil ethnicity and of the Hindu religion. 2 This appeal is from orders made by the Federal Circuit Court of Australia on 7 July 2017, dismissing, with costs, an application for judicial review filed in that Court on 11 January 2016. 3 The application for judicial review was in respect of the decision of the Administrative Appeals Tribunal (the Tribunal) dated 7 December 2015. The decision of the Tribunal was to affirm the decision not to grant the present appellant a Protection visa. 4 The notice of appeal to this Court is uninformative: the sole ground states: "The Judge did not consider all of the grounds raised and did not consider a relevant consideration and denied me procedural fairness". It said: "Particulars to be provided". I shall assume, in favour of the appellant, that he wished to press in this Court the grounds of judicial review before the Federal Circuit Court and that he contended that the primary judge had erred in dismissing them. 5 The judicial review application to the Federal Circuit Court contained three grounds of review but ground three and particular (iii) of ground 1 were not pressed. The remaining grounds read as follows: Ground 1 The AAT committed jurisdictional error by failing to ask the correct question and exploring the claims put forward when applying the real chance test. PARTICULARS (i) The AAT accepted that persons "more likely to be at risk of harm in Sri Lanka" were people who held "senior LTTE positions within the LTTE", "LTTE cadres", "fundraisers and propagandists" or people with family links to people who held such positions [79]. The tribunal accepted that two of the Applicant's cousins had links to the LTTE while the Applicant's father and another relative had links (to the LTTE)/are supporters of the TNA. The Tribunal failed to explore if any of the family members held positions in the LTTE [105]. (ii) Having accepted that the Applicant had familial connections to the LTTE [105] the Tribunal failed to consider the possibility of harm that could be caused to the Applicant by former LTTE cadres due to his familial connections to the LTTE [71]. Ground 2 The AAT committed jurisdictional error by applying a test higher than the real chance test. PARTICULARS (i) The AAT accepted that persons "more likely to be at risk of harm in Sri Lanka" were people who held "senior LTTE positions within the LTTE", "LTTE cadres", "fundraisers and propagandists" or people with family links to people as well such positions [79]. "More likely" is not the test.