CKL16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 918

CKL16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 918

The appeal was dismissed because the IAA did not substitute a profile-based test for the statutory test of well-founded fear of persecution, but considered the appellant's individual circumstances together with country information; the finding that Sri Lankan authorities had not made inquiries about him after departure was open on the material and was not illogical or irrational; the primary judge's incorrect statement that the appellant's own evidence was that no inquiries had been made did not affect the outcome; and leave to raise the proposed fourth ground was refused because it was not raised below, the explanation was unsatisfactory, and the ground had little apparent merit.

Jurisdiction
Australia
Judgment Date
29 June 2020
Procedural Posture
Migration Appeal From a Federal Circuit Court Decision Dismissing an Application for Judicial Review of an Immigration Assessment Authority Decision Affirming Refusal of a Protection Visa / Appeal; Application for Leave to Rely on Proposed Additional Grounds of Appeal
Outcome
Leave to amend the notice of appeal to introduce proposed grounds 2 and 3 granted; leave to rely on proposed ground 4 dismissed; appeal dismissed with costs.
Legal Topics
['protection Visa' 'safe Haven Enterprise Visa' 'immigration Assessment Authority' 'well Founded Fear of Persecution' 'imputed Political Opinion' 'no Evidence Ground' 'illogicality or Irrationality' 'leave to Raise New Grounds on Appeal']
['migration' 'administrative Law' 'judicial Review'] ['protection Visa' 'safe Haven Enterprise Visa' 'immigration Assessment Authority' 'well Founded Fear of Persecution' 'imputed Political Opinion' 'no Evidence Ground' 'illogicality or Irrationality' 'leave to Raise New Grounds on Appeal']

Case Brief

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Procedural Posture

Migration Appeal From a Federal Circuit Court Decision Dismissing an Application for Judicial Review of an Immigration Assessment Authority Decision Affirming Refusal of a Protection Visa / Appeal; Application for Leave to Rely on Proposed Additional Grounds of Appeal

Legal Issues

  1. 1 ['Whether the primary judge erred in not finding that the IAA applied the wrong test by assessing whether the appellant fell within risk profiles from country information rather than whether he had a well-founded fear of persecution.' 'Whether the primary judge erred in not finding that the IAA made a finding without evidence that Sri Lankan authorities had not made inquiries about the appellant since his departure.' "Whether the primary judge's incorrect description of the appellant's evidence affected the outcome." "Whether leave should be granted to rely on a proposed ground not raised before the primary judge alleging illogicality in the IAA's finding about the 2012 incident."]

Ratio Decidendi

The appeal was dismissed because the IAA did not substitute a profile-based test for the statutory test of well-founded fear of persecution, but considered the appellant's individual circumstances together with country information; the finding that Sri Lankan authorities had not made inquiries about him after departure was open on the material and was not illogical or irrational; the primary judge's incorrect statement that the appellant's own evidence was that no inquiries had been made did not affect the outcome; and leave to raise the proposed fourth ground was refused because it was not raised below, the explanation was unsatisfactory, and the ground had little apparent merit.

Court Disposition

Leave to amend the notice of appeal to introduce proposed grounds 2 and 3 granted; leave to rely on proposed ground 4 dismissed; appeal dismissed with costs.

Orders

  • ['The appellant has leave to amend the notice of appeal to introduce proposed grounds 2 and 3 and further filing or service thereof is dispensed with.' 'The application for leave to rely on proposed ground 4 is dismissed.' 'The appeal is dismissed.' "The appellant must pay the first respondent's costs of the appeal,...