BPQ15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1834

BPQ15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1834

Leave to amend was refused because the proposed new ground lacked sufficient merit and no explanation was advanced for not raising it before the primary judge. On a fair reading of the Tribunal's reasons, the finding that the alleged abduction was an isolated incident which did not give rise to a real chance of serious harm in the foreseeable future was not an impermissible quantitative assessment. It reflected a qualitative assessment of the future risk, supported by contextual matters including the appellant's lack of political activity or LTTE ties, uncertainty about who abducted him and why, absence of further threats, continuation of his routine after the incident, and country...

Jurisdiction
Australia
Judgment Date
08 November 2019
Procedural Posture
Migration Appeal From Decision of the Federal Circuit Court of Australia Dismissing an Application for Judicial Review of a Decision of the Administrative Appeals Tribunal Affirming Refusal of a Protection Visa / Appeal and Application to Amend Notice of Appeal
Outcome
Application to amend the notice of appeal dismissed; appeal dismissed with costs.
Legal Topics
['protection Visa' 'refugee Definition' 'serious Harm' 'threat to Life or Liberty' 'sections 91 R and 91 S of the Migration Act 1958 (cth)' 'jurisdictional Error' 'leave to Raise New Point on Appeal']
['migration' 'administrative Law' 'judicial Review'] ['protection Visa' 'refugee Definition' 'serious Harm' 'threat to Life or Liberty' 'sections 91 R and 91 S of the Migration Act 1958 (cth)' 'jurisdictional Error' 'leave to Raise New Point on Appeal']

Case Brief

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Procedural Posture

Migration Appeal From Decision of the Federal Circuit Court of Australia Dismissing an Application for Judicial Review of a Decision of the Administrative Appeals Tribunal Affirming Refusal of a Protection Visa / Appeal and Application to Amend Notice of Appeal

Legal Issues

  1. 1 ['Whether the appellant should be granted leave to amend the notice of appeal to raise a new ground not raised before the Federal Circuit Court.' 'Whether the Tribunal misunderstood the well-founded fear test and failed to make the qualitative assessment required by Minister for Immigration and Border Protection v WZAPN when treating the alleged abduction as an isolated incident.' "Whether the Tribunal's alternative finding that the alleged abduction did not give rise to a real chance of serious harm in the foreseeable future disclosed jurisdictional error."]

Ratio Decidendi

Leave to amend was refused because the proposed new ground lacked sufficient merit and no explanation was advanced for not raising it before the primary judge. On a fair reading of the Tribunal's reasons, the finding that the alleged abduction was an isolated incident which did not give rise to a real chance of serious harm in the foreseeable future was not an impermissible quantitative assessment. It reflected a qualitative assessment of the future risk, supported by contextual matters including the appellant's lack of political activity or LTTE ties, uncertainty about who abducted him and why, absence of further threats, continuation of his routine after the incident, and country...

Court Disposition

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

Orders

  • ["The name of the first respondent is amended to 'Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs'." 'The application to amend the notice of appeal is dismissed.' 'The appeal is dismissed.' "The appellant must pay the first respondent's costs of the appeal, to be assessed if not...