BSR16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 164

FEDERAL COURT OF AUSTRALIA

BSR16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 164 Appeal from: BSR16 v Minister for Immigration and Border Protection [2019] FCCA 2306

File number: NSD 1481 of 2019

Judge: PERRAM J

Date of judgment: 21 February 2020

Catchwords: MIGRATION – appeal from Federal Circuit Court – whether Court erred in dismissing application for judicial review of decision of Administrative Appeals Tribunal to refuse to issue Appellant a Protection (Class XA) visa – where Appellant, a Sri Lankan Tamil, fled Sri Lanka for India as a child and has since lost right to return to India – whether Tribunal failed to consider integers of claim concerning Appellant's status as a Sri Lankan Tamil refugee returning from Australia – whether Tribunal failed to consider claim that Appellant would be arrested on return to Sri Lanka for having departed illegally – whether Tribunal obliged to disclose newspaper article relied upon under Migration Act 1958 (Cth) s 424A – whether information subject to an invalid s 438 certificate not disclosed to Appellant 'material' so as to constitute jurisdictional error MIGRATION – where Appellant raised possible sur place claim at hearing – where no such claims subject of a current visa application – where First Respondent made representations that steps would be taken to assess sur place claim prior to any removal of Appellant from Australia

Legislation: Migration Act 1958 (Cth) ss 5AA, 5H, 36, 46A, 198, 424A, 438 Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954), as amended by the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) Foreigners Act 1946 (India) Immigrants and Emigrants Act 1948 (Sri Lanka)