BGV19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 22

Procedural Posture

Migration Appeal From Federal Circuit Court Dismissal of Judicial Review Application / Appeal to the Federal Court of Australia

Legal Issues

1. 1 ['Whether the Authority was required to consider the consequences that may befall the appellant were he to return to Iran irregularly after departing Iran using a fraudulent passport and having no right of return as a stateless, unregistered Faili Kurd.' 'Whether the Authority failed to give proper, genuine and realistic consideration to whether the appellant may face harm on return as a stateless Faili Kurd failed asylum seeker who departed Iran on a fraudulent Iraqi passport.' 'Whether the Authority failed to consider a mandatory relevant consideration, being whether the appellant may face a real chance of harm as an involuntary, undocumented stateless Faili Kurd refugee returnee.' 'Whether any error identified by the primary judge was material and therefore jurisdictional.']

Ratio Decidendi

The appeal failed because the appellant did not make, and the material before the Authority did not clearly raise, a claim that he feared harm by reason of irregular or illegal return to Iran as a stateless Faili Kurd failed asylum seeker. The Authority was therefore not required to consider the consequences of such an irregular return. In any event, the asserted second assumption that the appellant would enter Iran irregularly was speculative, and there was no evidence before the Authority establishing a realistic possibility that the decision could have been different had that matter been considered. Any error was not material and did not amount to jurisdictional error.

Court Disposition

Appeal dismissed.

Orders

• ['The appeal be dismissed.' "The appellant pay the first respondent's costs, as agreed or taxed."]