DUX16 v Minister for Immigration and Border Protection [2018] FCA 1529

DUX16 v Minister for Immigration and Border Protection [2018] FCA 1529

Leave was granted to raise the first fresh argument, but it failed on the merits. Although the Authority did not use the express phrase 'reasonably foreseeable future' when dealing with the second claim, its reasons, read fairly and in context, showed awareness of the required inquiry and paragraph [54] was properly read as addressing both present and reasonably foreseeable future risk. The Authority made no finding that the situation in Najaf or southern Iraq was fluid, and the reports were not before the Court so as to show obvious fluidity requiring a different conclusion. The second and third proposed arguments had no merit because the Authority had expressly referred to the...

Jurisdiction
Australia
Judgment Date
12 October 2018
Procedural Posture
Migration Appeal From Federal Circuit Court Decision Dismissing Judicial Review of Immigration Assessment Authority Decision Affirming Refusal of a Protection Visa / Appeal to the Federal Court of Australia
Outcome
Leave granted for the first fresh argument, leave refused for the second and third proposed arguments, and the appeal dismissed with costs.
Legal Topics
['protection Visa' 'jurisdictional Error' 'immigration Assessment Authority' 'well Founded Fear of Persecution' 'reasonably Foreseeable Future' 'leave to Raise Fresh Arguments on Appeal']
['migration Law' 'administrative Law' 'refugee Law'] ['protection Visa' 'jurisdictional Error' 'immigration Assessment Authority' 'well Founded Fear of Persecution' 'reasonably Foreseeable Future' 'leave to Raise Fresh Arguments on Appeal']

Case Brief

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Procedural Posture

Migration Appeal From Federal Circuit Court Decision Dismissing Judicial Review of Immigration Assessment Authority Decision Affirming Refusal of a Protection Visa / Appeal to the Federal Court of Australia

Legal Issues

  1. 1 ['Whether the Appellant should be granted leave to raise arguments not put to the Federal Circuit Court.' 'Whether the Authority failed to consider the risk of harm to the Appellant in the reasonably foreseeable future in respect of his second claim that he would be assaulted, threatened or attacked because he was Sunni.' "Whether the Authority failed to consider the Appellant's particular circumstances as a practising Sunni whose prayer style identified him as Sunni and his lack of family support in Najaf." "Whether leave should be granted for an argument based on the Appellant's family being the only Sunni family in his neighbourhood in Najaf."]

Ratio Decidendi

Leave was granted to raise the first fresh argument, but it failed on the merits. Although the Authority did not use the express phrase 'reasonably foreseeable future' when dealing with the second claim, its reasons, read fairly and in context, showed awareness of the required inquiry and paragraph [54] was properly read as addressing both present and reasonably foreseeable future risk. The Authority made no finding that the situation in Najaf or southern Iraq was fluid, and the reports were not before the Court so as to show obvious fluidity requiring a different conclusion. The second and third proposed arguments had no merit because the Authority had expressly referred to the...

Court Disposition

Leave granted for the first fresh argument, leave refused for the second and third proposed arguments, and the appeal dismissed with costs.

Orders

  • ['Leave be granted to the Appellant to rely upon the argument that the Authority failed to consider the risk of harm to him in the reasonably foreseeable future in respect of his second claim.' 'The Appellant be directed to file and serve an appropriately Amended Notice of Appeal within seven (7) days.' 'The appeal...