CKY19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCA 1623
•16 December 2021
FEDERAL COURT OF AUSTRALIA
CKY19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1623
Appeal from: CKY19 v Minister for Immigration and Anor (No 2) [2020] FCCA 1776 File number(s): NSD 804 of 2020 Judgment of: DAVIES J Date of judgment: 16 December 2021 Date of publication of reasons: 21 December 2021 Catchwords: MIGRATION – appeal – application for leave to rely on new ground of appeal and adduce fresh evidence not advanced in the Court below – where appellant was represented in the Court below – where legal representatives made a forensic decision not to adduce evidence sought to be relied on in this appeal – where new evidence is inconsistent with how appellant advanced case before decision makers below – interests of justice do not require grant of leave – application to adduce fresh evidence refused – appeal dismissed Legislation: Federal Court of Australia Act 1976 (Cth) s 27
Migration Act 1958 (Cth) ss 5H, 5J, 36(2)(a)-(aa), 473CC, 473DB
Federal Court Rules 2011 (Cth) r 36.57
Cases cited: Coulton v Holcombe [1986] HCA 33; 162 CLR 1 Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 7 Date of hearing: 14 December 2021 Solicitor for the Appellant: Mr D Taylor of SWL Migration Counsel for the First Respondent: Ms C Ernst Solicitor for the First Respondent: Mills Oakley Counsel for the Second Respondent: The Second Respondent filed a Submitting Notice ORDERS
NSD 804 of 2020 BETWEEN: CKY19
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
DAVIES J
DATE OF ORDER:
16 DECEMBER 2021
THE COURT ORDERS THAT:
1.The application for leave to rely upon a new ground be refused.
2.The application to adduce fresh evidence pursuant to s 27 of the Federal Court of Australia Act 1976 (Cth) be refused.
3.The appeal be dismissed.
4.The appellant to pay the costs of the first respondent, such costs to be taxed in default of agreement.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
DAVIES J:
The appellant has appealed the orders of the Federal Circuit Court of Australia (FCC) (as it then was) dismissing his application for judicial review of an adverse Immigration Assessment Authority (IAA). The assessor, who conducted the review, affirmed the decision of a delegate of the first respondent not to grant the appellant a protection visa.
The appellant arrived in Australia as an irregular maritime arrival and claimed to be a stateless Faili Kurd. The delegate was not satisfied that the appellant was stateless and, instead, found that the appellant was a citizen of Iran where he was born and had resided until his arrival in Australia. The assessor took a different view and accepted the appellant’s claim that he did not hold Iranian citizenship. The assessor also accepted the appellant’s claim that he is stateless. In doing so, the assessor accepted the appellant’s claim that his parents were Iraqi citizens who were expelled to Iran in 1980 (where they have lived ever since) and have lost their Iraqi citizenship. Although the appellant did not claim to have Iraqi citizenship and, in fact, denied that he had such citizenship, the assessor also considered and accepted that the appellant is not a citizen of Iraq. The assessor went on to find that Iran was the appellant’s country of former habitual residence and assessed the appellant’s claims for protection on the basis of his removal to Iran as the “receiving country” for the purposes of ss 5H, 5J and 36(2)(a)-(aa) of the Migration Act 1958 (Cth) (Migration Act).
The appellant’s application for judicial review initially raised two alleged grounds of legal error, but one ground was abandoned at the hearing. The only ground pressed was the contention that there had been a failure to comply with s 473CC and s 473DB of the Migration Act in the conduct of the assessment. The FCC found there had been non‑compliance, but held that the non‑compliance was not material and could not realistically have given rise to a different outcome in the conduct of the assessment. Accordingly, the FCC dismissed the application for review.
The appellant does not seek to appeal the rejection of the one ground that was advanced. Rather, the appellant seeks to rely on an entirely new ground not advanced before the FCC, namely that the IAA’s task to review the decision of the delegate miscarried, because the IAA only assessed the appellant’s claim to fear harm if he returned to Iran, and failed to assess the appellant’s claim to fear harm on the basis that he had a right to return to Iraq. The appellant also seeks leave to adduce fresh evidence pursuant to s 27 of the Federal Court of Australia Act 1976 (Cth) and r 36.57 of the Federal Court Rules 2011 (Cth) to support the claim that Iraq also qualifies as the country of the appellant’s habitual residence. The fresh evidence comprises the Department of Foreign Affairs and Trade (DFAT) Thematic Report, Faili Kurds in Iraq and Iran, 3 December 2014 and parts of the Procedures Advice Manual 3: Refugee and Humanitarian - Refugee Law Guidelines.
An appellate court will ordinarily only permit a new ground to be raised on appeal if the interests of justice require: Coulton v Holcombe [1986] HCA 33; 162 CLR 1, 7-8. I am of the view that the interests of justice do not require the grant of leave in the present case for the following reasons. First, the appellant was represented by counsel and solicitors before the FCC and the explanation as to why the new ground was not put below lies in the fact that the appellant’s legal representatives made the forensic decision not to advance that ground below. The deliberate and conscious decision to refrain from raising the ground below provides reason in itself to refuse the grant of leave because the interests of justice include the public interest in the finality of litigation, which would be undermined by allowing a new point to be argued on appeal that the party intentionally did not raise below. Secondly, the ground that the appellant now proposes to advance is in fact inconsistent with the way in which the appellant advanced his claims before the IAA – the appellant’s claims and evidence before the IAA was that he had only lived in Iran prior to coming to Australia, he had never resided in Iraq and he was not an Iraqi citizen. Thirdly, I was not taken to any material that indicated that the appellant’s claims included a claim that he had a right to return to Iraq, or that Iraq may be considered to be the country of his former habitual residence. Nor frankly does a claim clearly arise on the material that the appellant has a well-founded fear of persecution or harm if returned to Iraq. The IAA turned its attention to the appellant’s country of habitual residence and, having regard to the claims advanced by the appellant, correctly assessed his claims for protection on the basis that Iran was the receiving country.
In the circumstances, the application for leave to rely on the new ground is refused, and it follows that the application to adduce fresh evidence is also refused.
There will be orders that:
(1)the application for leave to rely upon a new ground be refused;
(2)the application to adduce fresh evidence pursuant to s27 of the Federal Court of Australia Act 1976 (Cth) be refused;
(3)the appeal be dismissed; and
(4)the appellant to pay the costs of the first respondent, such costs to be taxed in default of agreement.
I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Davies. Associate:
Dated: 21 December 2021
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