CKG17 v Minister For Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1443

CKG17 v Minister For Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1443

Leave to rely on the new first ground of appeal was refused because granting leave would make the Federal Court the de facto trial court on an allegation not raised below, would undermine the statutory review structure and prejudice the Minister, no satisfactory explanation was given for not raising the ground in the Federal Circuit Court, the contention concerned factual issues, and it lacked merit. The Immigration Assessment Authority had accurately recorded and dealt with the appellant's claims concerning his brother-in-law's disappearance, family LTTE links, and risk from authorities, and was not required to make a more specific finding as to who was responsible for the disappearance....

Jurisdiction
Australia
Judgment Date
08 October 2020
Procedural Posture
Migration Appeal From Federal Circuit Court Judicial Review Proceedings Concerning an Immigration Assessment Authority Decision Affirming Refusal of a Safe Haven Enterprise Visa / Appeal; Application for Leave to Rely on a New Ground of Appeal Not Raised Below
Outcome
Leave to rely on the first ground of appeal was refused and the appeal was dismissed with costs.
Legal Topics
['judicial Review of Immigration Assessment Authority Decision' 'safe Haven Enterprise Visa' 'refugee Protection' 'complementary Protection' 'leave to Raise New Ground on Appeal' 'fresh Evidence on Appeal' 'jurisdictional Error']
['migration' 'administrative Law' 'practice and Procedure'] ['judicial Review of Immigration Assessment Authority Decision' 'safe Haven Enterprise Visa' 'refugee Protection' 'complementary Protection' 'leave to Raise New Ground on Appeal' 'fresh Evidence on Appeal' 'jurisdictional Error']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Migration Appeal From Federal Circuit Court Judicial Review Proceedings Concerning an Immigration Assessment Authority Decision Affirming Refusal of a Safe Haven Enterprise Visa / Appeal; Application for Leave to Rely on a New Ground of Appeal Not Raised Below

Legal Issues

  1. 1 ['Whether leave should be granted to rely on a new ground of appeal alleging that the Immigration Assessment Authority failed to consider a claim that the appellant faced serious or significant harm as a family member of a victim of enforced disappearance by authorities or linked paramilitaries.' "Whether the Immigration Assessment Authority considered the appellant's claim based on family links to persons with actual or imputed LTTE connections and made findings open on the material." "Whether the Immigration Assessment Authority was required to make a specific finding as to who was responsible for the appellant's brother-in-law's disappearance." "Whether the appellant's proposed fresh evidence, being an extract from UNHCR Eligibility Guidelines, should be received on appeal."]

Ratio Decidendi

Leave to rely on the new first ground of appeal was refused because granting leave would make the Federal Court the de facto trial court on an allegation not raised below, would undermine the statutory review structure and prejudice the Minister, no satisfactory explanation was given for not raising the ground in the Federal Circuit Court, the contention concerned factual issues, and it lacked merit. The Immigration Assessment Authority had accurately recorded and dealt with the appellant's claims concerning his brother-in-law's disappearance, family LTTE links, and risk from authorities, and was not required to make a more specific finding as to who was responsible for the disappearance....

Court Disposition

Leave to rely on the first ground of appeal was refused and the appeal was dismissed with costs.

Orders

  • ['Leave to rely on the first ground of appeal, as filed or amended, be refused.' 'The appeal be dismissed.' "The appellant pay the first respondent's costs."]