AXU15 v Minister for Immigration and Border Protection [2017] FCA 850

AXU15 v Minister for Immigration and Border Protection [2017] FCA 850

Although the applicant had a proper explanation for the 25 day delay and the Minister would suffer no prejudice, the appeal failed on its merits. The Facebook baptism material did not amount to a substantial, clearly articulated claim, nor did such a claim clearly arise from the material, particularly because the applicant was legally represented, had made extensive prior submissions without mentioning the claim, the photographs were relevant to an existing conversion claim, and the applicant never expressly stated a fear of persecution based on imputed apostasy or religious affiliation from the Facebook posts. The failed asylum seeker grounds also failed because there was no error in the...

Jurisdiction
Australia
Judgment Date
28 July 2017
Procedural Posture
Migration Appeal and Application for Extension of Time to Appeal / Appeal From Federal Circuit Court Orders Dismissing Judicial Review Application
Outcome
Extension of time granted; appeal dismissed.
Legal Topics
['protection Visa' 'extension of Time' 'jurisdictional Error' 'procedural Fairness' 'failure to Consider Claims' 'refugee Status' 'real Chance Test' 'failed Asylum Seekers' 'imputed Apostasy' 'sur Place Claim']
['migration Law' 'administrative Law' 'judicial Review'] ['protection Visa' 'extension of Time' 'jurisdictional Error' 'procedural Fairness' 'failure to Consider Claims' 'refugee Status' 'real Chance Test' 'failed Asylum Seekers' 'imputed Apostasy' 'sur Place Claim']

Case Brief

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Procedural Posture

Migration Appeal and Application for Extension of Time to Appeal / Appeal From Federal Circuit Court Orders Dismissing Judicial Review Application

Legal Issues

  1. 1 ['Whether the applicant should be granted an extension of time to appeal from the Federal Circuit Court orders.' 'Whether the Tribunal failed to consider a claim that the applicant faced a real risk of imputed religious affiliation or apostasy because images and information about his baptism were published on Facebook.' 'Whether the Tribunal committed jurisdictional error by failing to consider the applicant as a member of the social group of involuntary returnee failed asylum seekers.' 'Whether the Tribunal misapplied the real chance test in relation to possible persecution if the applicant were forced to return to Iran as an involuntary returned failed asylum seeker.']

Ratio Decidendi

Although the applicant had a proper explanation for the 25 day delay and the Minister would suffer no prejudice, the appeal failed on its merits. The Facebook baptism material did not amount to a substantial, clearly articulated claim, nor did such a claim clearly arise from the material, particularly because the applicant was legally represented, had made extensive prior submissions without mentioning the claim, the photographs were relevant to an existing conversion claim, and the applicant never expressly stated a fear of persecution based on imputed apostasy or religious affiliation from the Facebook posts. The failed asylum seeker grounds also failed because there was no error in the...

Court Disposition

Extension of time granted; appeal dismissed.

Orders

  • ['The applicant be granted an extension of time within which to appeal from the orders made by the Federal Circuit Court on 20 October 2016 up to and including 4 December 2016.' 'The appeal be dismissed.' "The applicant pay the first respondent's costs of the application and appeal to be agreed or taxed."]