AVX17 v Minister for Immigration and Border Protection [2018] FCA 829

AVX17 v Minister for Immigration and Border Protection [2018] FCA 829

The appeal was dismissed because Grounds 1 to 3 were founded on misreadings or unsupported criticisms of the Authority's reasons: the Authority considered more than the improved security situation, considered the appellant's individual circumstances and foreseeable future, and addressed doubt where it had doubt. Leave to raise Grounds 4 and 5 was refused because Ground 4 was too general to be meaningful and Ground 5 was not reasonably arguable, the Authority's findings being reasonably open, logical and rational on the material.

Jurisdiction
Australia
Judgment Date
16 May 2018
Procedural Posture
Migration Appeal From the Federal Circuit Court of Australia / Appeal Against Dismissal of Judicial Review Application; Application for Leave to Raise New Grounds of Appeal
Outcome
Leave to raise Grounds 4 and 5 refused; appeal dismissed with costs.
Legal Topics
['protection Visa' 'safe Haven Enterprise Visa (subclass 790)' 'real Chance Test' 'well Founded Fear of Persecution' 'jurisdictional Error' 'leave to Raise New Grounds on Appeal' 'irrationality or Illogicality' 'unlawful Maritime Arrival']
['migration Law' 'administrative Law'] ['protection Visa' 'safe Haven Enterprise Visa (subclass 790)' 'real Chance Test' 'well Founded Fear of Persecution' 'jurisdictional Error' 'leave to Raise New Grounds on Appeal' 'irrationality or Illogicality' 'unlawful Maritime Arrival']

Case Brief

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Procedural Posture

Migration Appeal From the Federal Circuit Court of Australia / Appeal Against Dismissal of Judicial Review Application; Application for Leave to Raise New Grounds of Appeal

Legal Issues

  1. 1 ['Whether the Immigration Assessment Authority erred in applying the real chance test by relying on an improved security situation in Sri Lanka.' "Whether the Immigration Assessment Authority failed to consider the reasonably foreseeable future on the appellant's return to Sri Lanka." 'Whether the Immigration Assessment Authority was required to consider the possibility that disputed past events occurred despite not accepting them on the balance of probabilities.' 'Whether leave should be granted to raise new Grounds 4 and 5 that were not raised before the Federal Circuit Court.' "Whether the Immigration Assessment Authority's findings were unreasonable, irrational or illogical."]

Ratio Decidendi

The appeal was dismissed because Grounds 1 to 3 were founded on misreadings or unsupported criticisms of the Authority's reasons: the Authority considered more than the improved security situation, considered the appellant's individual circumstances and foreseeable future, and addressed doubt where it had doubt. Leave to raise Grounds 4 and 5 was refused because Ground 4 was too general to be meaningful and Ground 5 was not reasonably arguable, the Authority's findings being reasonably open, logical and rational on the material.

Court Disposition

Leave to raise Grounds 4 and 5 refused; appeal dismissed with costs.

Orders

  • ['Leave to the appellant to raise Grounds 4 and 5 in the notice of appeal filed on 16 November 2017 be refused.' 'The appeal be dismissed.' "The appellant pay the first respondent's costs of and incidental to the appeal, to be taxed if not agreed."]