AFG20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

• Jurisdiction: Australia Federal only
• Judgment Date: 20 May 2022
• Neutral Citation: [2022] FCA 585
• Date: 20 May 2022
• Court: Federal Court

Federal Court of Australia

AFG20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 585

Appeal from:	AFG20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2020] FCCA 1361
File number:	VID 443 of 2020
Judgment of:	CHEESEMAN J
Date of judgment:	20 May 2022
Catchwords:	PRACTICE AND PROCEDURE – application for leave to rely upon proposed amended ground of appeal as set out in the appellant’s outline of written submissions – where proposed amended ground of appeal opposed in part by the first respondent (Minister) – where proposed amended ground includes an argument not raised before the primary judge – where no explanation for failure to take the point in the Court below – where the Minister opposed leave being granted on the basis that the proposed amended ground raised matters not argued below and which if raised, could have caused the Minister to adduce evidence below – consideration of merits of proposed amended ground – Held: leave refused in part. MIGRATION – appeal from the Federal Circuit Court of Australia (now the Federal Circuit and Family Court of Australia) – whether the Circuit Court erred in failing to find jurisdictional error in the second respondent’s (the Administrative Appeals Tribunal) decision – whether the Tribunal erred in its findings that the Appellant’s “personal and family profile were such that he did not face a real risk of serious or significant harm” – whether the Tribunal erred in failing to find the Appellant faced risk of harm by reason of having escaped Sri Lanka on a forged passport – whether the Tribunal erred by failing to take into account country information relating to the Sri Lankan state practice in respect of those who left the country using a forged identity – whether the Tribunal erred by finding, based on the Department of Foreign Affairs and Trade’s country information report, that illegal departure by boat was analogous to the crime of passport fraud or false passport – Held: no error – appeal dismissed.
Legislation:	Migration Act 1958 (Cth), ss 36, 65 Sri Lanka: Immigrants and Emigrants Act, 1949 [Sri Lanka], s 45(1)(f)
Cases cited:	AAM15 v Minister for Immigration and Border Protection & Anor [2015] FCA 804; 231 FCR 452 Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 AWU15 v Minister for Immigration and Border Protection [2019] FCA 2008 BDR18 v Minister for Home Affairs [2020] FCA 212 Coulton v Holcombe [1986] FCA 33; 162 CLR 1 CED15 v Minister for Immigration and Border Protection [2018] FCA 451 CBN18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2190; 272 FCR 513 CUF18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 144 CXS18 v Minister for Home Affairs [2020] FCAFC 18 DFU16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 222 GLD18 v Minister for Home Affairs [2020] FCAFC 2 MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585 MZAJC v Minister for Immigration and Border Protection [2016] FCA 208 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134; 147 FCR 51 NWQR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 30 O’Brien v Komesaroff [1982] HCA 33; 150 CLR 310 Water Board v Moustakas; [1988] HCA 12;180 CLR 491 WGKS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 10
Division:	Appeal Division
Registry:	Victoria
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	70
Date of last submissions:	18 July 2021
Date of hearing:	28 June 2021
Counsel for the Appellant:	Daniel Taylor
Solicitor for the Appellant:	SWL Migration
Counsel for the First Respondent:	Christopher Tran
Solicitor for the First Respondent:	Australian Government Solicitor
Counsel for the Second Respondent:	The Second Respondent filed a submitting notice save as to costs

ORDERS

		VID 443 of 2020
BETWEEN:	AFG20 Appellant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

order made by:	CHEESEMAN J
DATE OF ORDER:	20 May 2022

THE COURT ORDERS THAT:

1. Leave is granted to the Appellant to rely on the proposed amended grounds of appeal recorded in the written submissions filed for the Appellant on 5 June 2021 save for:

   1. the whole of particular (ii);

   2. that part of particular (iii) which says “in conjunction with his own family having been targeted as an LTTE family post war through the brutal rape of his mother in their home while the applicant was present”; and

   3. that part of particular (iv) which says “circumstances where his family was a known LTTE family which had been targeted post‑war”,

in respect of which leave is not granted.

2. Within 14 days, the Appellant file and serve an amended notice of appeal to reflect the limited grant of leave in order 1.

3. The appeal be dismissed with costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

CHEESEMAN J:

Introduction

1. The Appellant, a Sri Lankan national, appeals from a decision of what was then the Federal Circuit Court of Australia (FCC), now the Federal Circuit and Family Court of Australia, dismissing his application for judicial review of a decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate of the First Respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, to refuse the Appellant a protection visa under s 65 of the Migration Act 1958 (Cth).

2. The Appellant seeks leave to amend the notice of appeal. By the proposed amended ground and particulars thereof, the Appellant contends that the Tribunal erred in finding that the Appellant’s “personal and family profile were such that he did not face a real risk of serious or significant harm”. The particulars given in support of this amended ground are that: (1) the alleged risk to the Appellant arising from his departure from Sri Lanka on a forged passport; (2) the Tribunal failed to address the Appellant’s claim that the targeting and rape of his mother in her home, in his presence, also constituted direct harm to him; (3) the Tribunal allegedly failed to...