FEDERAL COURT OF AUSTRALIA

DZAAI v Minister for Immigration and Citizenship [2012] FCA 1151

THE COURT ORDERS THAT:

1.    Leave is given to file a notice of appeal raising grounds 1-6 of draft but not grounds 7 and 8. Time is extended accordingly; and

2.    judgment is reserved.

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

REASONS FOR JUDGMENT

1    The applicant wishes to apply for a protection visa. He may not do so unless the first respondent (the Minister”) permits him to do so. He has been subject to an unfavourable Refugee Status Assessment (the ‘RSA”) and an unsuccessful Independent Merits Review (the “IMR”). He has unsuccessfully sought review of the IMR in the Federal Magistrates Court and now seeks to appeal from that decision. However he failed to lodge his notice of appeal within the prescribed time and seeks an extension of time in which so to do. The respondent does not object to such an extension, save as to two of the proposed grounds which were not raised at first instance. The proposed notice of appeal is annexure CO1 to the affidavit of Mr O’Connor, filed on 24 April 2012. The challenged grounds are grounds 7 and 8. The applicant accepts that they were not raised before the Federal Magistrate. Generally, it would follow that they should not be raised on appeal, unless the interests of justice demonstrate otherwise.

2    The two disputed grounds of appeal are:

 7.    The [Reviewer] asked itself the wrong question and thereby fell into error by focusing upon the outcome of the likely interrogation of the [applicant] upon return to Sri Lanka rather than the process of such an interrogation.

   8.    The [Reviewer] failed to consider an integer of the [applicant’s] claims, namely whether he would be at risk of serious harm for having left the country illegally.

3    Both proposed grounds arise out of paras 42 to 47 of the IMR. Clearly, the Reviewer was not satisfied that the applicant would suffer serious harm in the course of any interrogation upon his return to Sri Lanka. It cannot be said, as is alleged in proposed ground 7, that the reviewer failed to consider whether the applicant would suffer such harm. That assertion was considered and rejected.

4    Proposed ground 8 concerns the fact that the applicant left Sri Lanka illegally. That matter is addressed in paras 44 and 45 of the reasons. Any fear of harm as a result of that matter is rejected in paras 46 and 47.

5    I grant leave to appeal limited to grounds 1 to 6 of the draft notice of appeal.

Associate:

Dated:    6 August 2013