CPQ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 329

CPQ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 329

Leave to raise the new appeal grounds was refused because none had sufficient merit. The IAA had considered the appellant's Tamil ethnicity, asserted LTTE family connections, status as a failed asylum seeker and illegal departee, country information and UNHCR Guidelines. Its findings that the appellant did not have a profile attracting adverse attention, did not face a real chance of persecution, and did not face a real risk of significant harm were open on the material, and no jurisdictional error or misapplication of the real chance test was established.

Jurisdiction
Australia
Judgment Date
09 April 2021
Procedural Posture
Migration Appeal From Dismissal of Application for Judicial Review of Immigration Assessment Authority Decision Affirming Refusal of Safe Haven Enterprise Visa / Appeal to the Federal Court; Leave Sought to Raise New Grounds on Appeal
Outcome
Leave to raise the new grounds was refused and the appeal was dismissed with costs.
Legal Topics
['leave to Raise New Grounds on Appeal' 'jurisdictional Error' 'immigration Assessment Authority Review' 'safe Haven Enterprise Visa' 'tamil Ethnicity' 'imputed Pro LTTE Political Opinion' 'failed Asylum Seeker Who Departed Sri Lanka Illegally' 'unhcr Guidelines' 'country Information' 'complementary Protection']
['migration' 'administrative Law' 'judicial Review' 'refugee and Complementary Protection Law'] ['leave to Raise New Grounds on Appeal' 'jurisdictional Error' 'immigration Assessment Authority Review' 'safe Haven Enterprise Visa' 'tamil Ethnicity' 'imputed Pro LTTE Political Opinion' 'failed Asylum Seeker Who Departed Sri Lanka Illegally' 'unhcr Guidelines' 'country Information' 'complementary Protection']

Case Brief

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Procedural Posture

Migration Appeal From Dismissal of Application for Judicial Review of Immigration Assessment Authority Decision Affirming Refusal of Safe Haven Enterprise Visa / Appeal to the Federal Court; Leave Sought to Raise New Grounds on Appeal

Legal Issues

  1. 1 ['Whether the appellant should be granted leave to raise new grounds on appeal that were not agitated before the Federal Circuit Court.' "Whether the Immigration Assessment Authority failed to consider the appellant's claims that he would suffer serious or significant harm as a person of Tamil ethnicity if returned to Sri Lanka." "Whether the Immigration Assessment Authority failed to consider the appellant's individual circumstances, including asserted family association with the LTTE and return as a failed asylum seeker who departed Sri Lanka illegally." 'Whether the Immigration Assessment Authority failed properly to consider the UNHCR Guidelines or misapplied the real chance test.']

Ratio Decidendi

Leave to raise the new appeal grounds was refused because none had sufficient merit. The IAA had considered the appellant's Tamil ethnicity, asserted LTTE family connections, status as a failed asylum seeker and illegal departee, country information and UNHCR Guidelines. Its findings that the appellant did not have a profile attracting adverse attention, did not face a real chance of persecution, and did not face a real risk of significant harm were open on the material, and no jurisdictional error or misapplication of the real chance test was established.

Court Disposition

Leave to raise the new grounds was refused and the appeal was dismissed with costs.

Orders

  • ['The name of the first respondent be amended to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.' 'The appeal be dismissed.' "The appellant pay the first respondent's costs of the appeal, to be fixed by way of a lump sum by a Registrar in default of agreement."]