ALK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1106

ALK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1106

The appeal failed because the IAA did consider the complementary protection criterion in s 36(2)(aa) by reference to its factual findings, including findings about extortion, kidnapping and the general security situation, and was not required to repeat the same fact-finding exercise after considering s 36(2)(a). The IAA also expressly considered the UNHCR report and gave reasons why its general country information did not apply to the appellant's particular circumstances. The proposed new grounds were without merit because the meaning of "03/15" was speculative and unexplained, the IAA was not unreasonable in not seeking further information under s 473DC, and the IAA did not treat...

Jurisdiction
Australia
Judgment Date
13 September 2021
Procedural Posture
Migration Appeal From Dismissal of Judicial Review Application / Appeal and Application for Leave to Amend Notice of Appeal
Outcome
Application for leave to amend the notice of appeal refused; appeal dismissed with costs.
Legal Topics
['temporary Protection Visa' 'immigration Assessment Authority' 'complementary Protection' 'jurisdictional Error' 'leave to Amend Notice of Appeal' 'country Information and UNHCR Report']
['migration' 'administrative Law' 'judicial Review'] ['temporary Protection Visa' 'immigration Assessment Authority' 'complementary Protection' 'jurisdictional Error' 'leave to Amend Notice of Appeal' 'country Information and UNHCR Report']

Case Brief

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Procedural Posture

Migration Appeal From Dismissal of Judicial Review Application / Appeal and Application for Leave to Amend Notice of Appeal

Legal Issues

  1. 1 ['Whether the Immigration Assessment Authority failed to consider a claim that the appellant would be at risk of extortion or kidnapping for ransom in Iraq against the criterion in s 36(2)(aa) of the Migration Act 1958 (Cth).' 'Whether the Immigration Assessment Authority failed properly to consider a UNHCR report concerning risk to families of civilians affiliated with US forces.' 'Whether leave should be granted to add proposed appeal grounds alleging unreasonableness or irrationality concerning the meaning of numbers on a US Mission Iraq pass and the exercise of the discretion under s 473DC of the Migration Act 1958 (Cth).' "Whether leave should be granted to add a proposed appeal ground alleging that the Immigration Assessment Authority unreasonably or irrationally found that the appellant's son was kidnapped for financial gain and misconstrued or misapplied s 5J(4)(a) of the Migration Act 1958 (Cth)."]

Ratio Decidendi

The appeal failed because the IAA did consider the complementary protection criterion in s 36(2)(aa) by reference to its factual findings, including findings about extortion, kidnapping and the general security situation, and was not required to repeat the same fact-finding exercise after considering s 36(2)(a). The IAA also expressly considered the UNHCR report and gave reasons why its general country information did not apply to the appellant's particular circumstances. The proposed new grounds were without merit because the meaning of "03/15" was speculative and unexplained, the IAA was not unreasonable in not seeking further information under s 473DC, and the IAA did not treat...

Court Disposition

Application for leave to amend the notice of appeal refused; appeal dismissed with costs.

Orders

  • ['The application for leave to amend the notice of appeal is refused.' 'The appeal is dismissed.' "The appellant pay the first respondent's costs of and incidental to the appeal, to be agreed or assessed."]