CJE19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1620

CJE19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1620

Although the Authority's finding that the appellant would likely return to Karbala was not shown to be irrational or illogical and was open on the material before it, the Authority acted legally unreasonably by not considering exercising, or alternatively by failing to exercise, its power under s 473DC(3) to obtain clarification about the appellant's likely place of return. The 2019 material materially elevated the significance of Kirkuk and indicated that the 2016 information concerning Karbala likely required updating. That failure was material and constituted jurisdictional error, so the Federal Circuit Court erred in not so finding.

Jurisdiction
Australia
Judgment Date
06 November 2020
Procedural Posture
Migration Appeal From Federal Circuit Court Judicial Review Decision Concerning Refusal of a Temporary Protection Visa / Appeal From Dismissal of Application for Judicial Review; Extension of Time to Appeal Granted
Outcome
Extension of time granted; appeal allowed; Federal Circuit Court orders set aside in part; Immigration Assessment Authority decision set aside and matter remitted for determination according to law; costs awarded against the first respondent.
Legal Topics
['temporary Protection Visa' 'immigration Assessment Authority' 'jurisdictional Error' 'illogicality or Irrationality' 'legal Unreasonableness' 's 473 Dc(3) of the Migration Act 1958 (cth)' 'new Information']
['migration Law' 'administrative Law'] ['temporary Protection Visa' 'immigration Assessment Authority' 'jurisdictional Error' 'illogicality or Irrationality' 'legal Unreasonableness' 's 473 Dc(3) of the Migration Act 1958 (cth)' 'new Information']

Case Brief

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Procedural Posture

Migration Appeal From Federal Circuit Court Judicial Review Decision Concerning Refusal of a Temporary Protection Visa / Appeal From Dismissal of Application for Judicial Review; Extension of Time to Appeal Granted

Legal Issues

  1. 1 ["Whether the Immigration Assessment Authority's finding that the appellant would return to Karbala was irrational or illogical, or reached without proper consideration of evidence about his family's relocation to Kirkuk." 'Whether the Immigration Assessment Authority unreasonably failed to exercise or consider exercising its power under s 473DC(3) of the Migration Act 1958 (Cth) to obtain new information from the appellant about the place to which he would return in Iraq.' 'Whether any established error was material and constituted jurisdictional error.']

Ratio Decidendi

Although the Authority's finding that the appellant would likely return to Karbala was not shown to be irrational or illogical and was open on the material before it, the Authority acted legally unreasonably by not considering exercising, or alternatively by failing to exercise, its power under s 473DC(3) to obtain clarification about the appellant's likely place of return. The 2019 material materially elevated the significance of Kirkuk and indicated that the 2016 information concerning Karbala likely required updating. That failure was material and constituted jurisdictional error, so the Federal Circuit Court erred in not so finding.

Court Disposition

Extension of time granted; appeal allowed; Federal Circuit Court orders set aside in part; Immigration Assessment Authority decision set aside and matter remitted for determination according to law; costs awarded against the first respondent.

Orders

  • ['There be an extension of time within which to appeal.' 'The appeal be allowed.' "Orders 2 and 3 of the judgment of the Federal Circuit Court given on 12 February 2020 be set aside and in lieu thereof it be ordered that: (a) The decision of the second respondent made on 14 May 2019 be set aside. (b) The matter be...