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Cqi18 v Minister for Home Affairs

Cqi18 v Minister for Home Affairs

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Case Copied 19 November 2020 41 min read

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FEDERAL CIRCUIT COURT OF AUSTRALIA

CQI18 v MINISTER FOR HOME AFFAIRS & ANOR

[2020] FCCA 3104

Catchwords:
MIGRATION – Independent merits review – applicant claims as stateless undocumented Faili Kurd – claim to fear harm on basis of being a spy abandoned before second independent merits reviewer – applicant found not to be credible – original grounds of review abandoned and replaced by six further grounds – whether reasoning illogical – whether no evidence for finding that applicant is an Iranian national – whether a failure to consider that decision might be wrong – whether law misapplied in relation to complementary protection – whether failure to consider unarticulated claim – application dismissed.

Legislation:

Federal Circuit Court of Australia Act 1999 (Cth), ss. 67. 68

Migration Act 1958 (Cth), ss. 5, 7, 14, 36, 40, 47, 368, 425, 430

Migration Amendment (Complementary Protection) Act 2011 (Cth)

Migration Regulations 1994 (Cth)

Cases cited:

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FCCA 3104
Decision Date: 19 November 2020

CaseChat Overview and Summary

This matter concerned an application for judicial review of a decision made by an Independent Merits Reviewer regarding the applicant's claim for protection. The applicant, who identified as a stateless Faili Kurd, had initially claimed to fear harm on the basis of being a spy, but this ground was abandoned before the second reviewer. The applicant's claim was found not to be credible, and the original grounds of review were replaced by six further grounds. The application was heard by Judge A. Kelly of the Federal Circuit Court of Australia.

The central legal issues before the Court were whether the reviewer's reasoning was illogical, whether there was no evidence to support the finding that the applicant was an Iranian national, whether the reviewer failed to consider that the decision might be wrong, and whether the law was misapplied in relation to complementary protection. Additionally, the Court considered whether there was a failure to consider an unarticulated claim made by the applicant.

Judge Kelly dismissed the application, finding that the reviewer's reasoning was not illogical and that there was a sufficient evidentiary basis for the finding that the applicant was an Iranian national. The Court also determined that the reviewer had properly considered the relevant legal principles, including those relating to complementary protection, and had not failed to consider any unarticulated claim. The Court made orders allowing the parties to appear by video and audio link, amended the name of the second respondent, dismissed the amended application, and ordered the applicant to pay the first respondent's costs.

Orders

Orders of the court

ORDERS

1. Pursuant to ss 67-68 of the Federal Circuit Court of Australia Act 1999 (Cth), direct that the parties be allowed to appear and to make submissions before the Court by video and audio link.

2. The name of the second respondent be amended in the title of the proceeding to Mara Moustaphine (In her capacity as Independent Merits Reviewer).

3. The amended application dated 24 April 2020 be dismissed.

4. The applicant pay the costs of the first respondent as agreed or assessed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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