ASO17 v Minister for Immigration, Citizenship and Multicultural Affairs

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 27 September 2022
• Neutral Citation: [2022] FCA 1141
• Date: 27 September 2022

Federal Court of Australia

ASO17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1141

Appeal from:	ASO17 v Minister for Immigration & Anor [2020] FCCA 567
File number(s):	NSD 373 of 2020
Judgment of:	GOODMAN J
Date of judgment:	27 September 2022
Catchwords:	MIGRATION – appeal from decision of the (then) Federal Circuit Court of Australia on judicial review of a decision of the Immigration Assessment Authority to refuse a protection visa – where ground of review not raised before primary judge – leave to advance ground on appeal refused – whether the Authority denied the appellant procedural fairness by limiting the length of submissions in accordance with a Practice Direction issued under s 473FB of the Migration Act 1958 (Cth) – no procedural unfairness – whether the Authority failed to take into account an essential element of the appellant’s claims – appeal dismissed
Legislation:	Federal Court of Australia Act 1976 (Cth), s 37M Migration Act 1958 (Cth), ss 5H, 5J, 36, 473CB, 437CC
Cases cited:	ANS17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 559 Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 ASO17 v Minister for Immigration and Border Protection [2020] FCCA 567 DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; (2018) 258 FCR 551 EQV20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 129 FOH18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1525 Francuziak v Minister for Justice [2015] FCAFC 162; (2015) 238 FCR 332 Khalil v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 26 Mawhinney v Australian Securities and Investments Commission [2022] FCAFC 159 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 [2022] FCAFC 12 MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441 VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 WZAVK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 114
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	39
Date of hearing:	13 September 2022
Counsel for the Appellant:	The appellant appeared in person
Counsel for the First Respondent:	Mr N Swan
Solicitor for the First Respondent:	Clayton Utz
Counsel for the Second Respondent:	The second respondent filed a submitting notice, save as to costs

ORDERS

		NSD 373 of 2020
BETWEEN:	ASO17 Appellant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS First Respondent ; IMMIGRATION ASSESSMENT AUTHORITY Second Respondent

order made by:	GOODMAN J
DATE OF ORDER:	27 september 2022

THE COURT ORDERS THAT:

1. The name of the first respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.

2. The appeal be dismissed.

3. The appellant pay the first respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

GOODMAN J

INTRODUCTION

1. The appellant is a citizen of Sri Lanka who arrived in Australia on 9 September 2012 as an unauthorised maritime arrival. On 7 March 2016, he applied for a Safe Haven Enterprise (Class XE) (subclass 790) visa.

2. On 4 October 2016, a delegate of the first respondent (Minister) made a decision under s 65 of the Migration Act 1958 (Cth) to refuse to grant the appellant a visa. On 10 October 2016, that decision was referred to the Immigration Assessment Authority for review and on the same day, the Authority wrote to the appellant acknowledging the referral and providing the appellant with information, including the “Practice Direction for Applicants, Representatives and Authorised Recipients”.

3. On 24 January 2017, the Authority affirmed the delegate’s decision and provided its Reasons for doing so.

4. On 21 February 2017, the appellant filed an application for judicial review with the (then) Federal Circuit Court of Australia. On 13 March 2020, the primary judge made orders dismissing that application: ASO17 v Minister for Immigration and Border Protection [2020] FCCA 567 (J). On 31 March 2020, the appellant appealed to this Court from the decision of the primary judge.

5. During the course of the hearing, the appellant sought an adjournment of the hearing to allow him the opportunity to obtain legal representation. For the reasons set out below, the application for an adjournment and the appeal are each dismissed.

THE APPELLANT’S CLAIMS FOR PROTECTION

6. The primary judge described the appellant’s claims for protection at J[10]:

10. The facts alleged in support of the applicant’s claim for a protection visa were summarised by the IAA in its decision record as follows:

a. during his childhood the applicant and his family were displaced by the Sri Lankan civil war and spent half a year in an army camp. During this time, his father received a bullet wound and he received a speech impediment as a result of nerve gas;

b. in 2006 X, the applicant’s brother, became a member of the LTTE navy. At the conclusion of the civil war the Sri Lankan Army (“SLA”) detained and tortured X in a prison camp for eight months and then the Criminal Investigations Department (“CID”) took him to Colombo where he was beaten and tortured;

c. X was freed in May 2010. The applicant supplied documents pertaining to X’s release. However, these documents stated that X was released from a temporary camp and rehabilitated at that camp’s rehabilitation centre as opposed to from a prison camp as originally claimed by the applicant. Upon release, X was required to report fortnightly to the police station and was constantly harassed by the CID. On multiple occasions X was kidnapped, tortured, beat and detained and was once shot in the leg while trying to escape;

d. the applicant elaborated on these events during his departmental interview. He said that another group who he could not name had also abducted X. When asked where the CID took X, the applicant vaguely said that he had been taken to “where the arms are buried” and then named two locations. The applicant told the delegate that X refused to join the CID. He told the delegate that X had told him this. One time X was detained for four days, beaten and shot upon trying to escape. The applicant said that after this incident their father took X directly to Colombo to escape to India as...