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CXK16 v Minister for Immigration

CXK16 v Minister for Immigration

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Case Copied 7 May 2020 45 min read

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FEDERAL CIRCUIT COURT OF AUSTRALIA

CXK16 v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 1016

Catchwords:
MIGRATION – Protection visa application – illogicality or irrationality in decision affirming decision to refuse application – where applicant introduces claim when interviewed by delegate that in 2001 his father had informed on Taliban resulting in the location of 150 Al Queda members who were then transferred to Guantanamo Bay, Cuba – where applicant claimed that this had resulted in his father incurring enmity of Taliban – where father suffers no harm between 2001 – 2008 – where applicant claimed father kidnapped, beaten and released in 2008 – where applicant claimed father remained in Pakistan until emigrating to United States in 2014 but suffered no harm between 2009-2014 – applicable principles – whether assumptions unwarranted – whether decision sufficiently seriously illogical, irrational or groundless – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.65, 36, 430, 474, 476

Cases cited:

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476

Selvadurai v Minister for Immigration and Ethnic Affairs & Anor (1994) 34 ALR 347
SZHYH v Minister for Immigration and Border Protection (No 3) [2019] FCA 589, (2019) 165 ALD 463
SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451
Thevendram v Minister for Immigration & Multicultural Affairs [2000] FCA 868
Tran v Minister for Immigration and Border Protection [2019] FCAFC 126
Wu Shan Liang (1996) 185 CLR 259

Texts:
Cross on Evidence 12^th Ed (2020)
Stephen’s Digest of the Law of Evidence 12^th ed (2020)
Wigmore on Evidence, (1983), Vol 1A

Applicant:

CXK16

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL…

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 1016
Decision Date: 7 May 2020

CaseChat Overview and Summary

The applicant, CXK16, sought judicial review of a decision by the Minister for Immigration affirming the refusal of his protection visa application. The dispute centred on the applicant's claims regarding his father's alleged informing on the Taliban, which the applicant asserted led to his father incurring the enmity of the Taliban and subsequent harm. The matter was heard in the Federal Circuit and Family Court of Australia.

The court was required to determine whether the delegate's decision affirming the refusal of the protection visa was affected by illogicality or irrationality. Specifically, the court considered whether the delegate's assumptions were unwarranted and whether the delegate's conclusion that the applicant's claims were not sufficiently seriously illogical, irrational, or groundless was correct.

In reaching its decision, the court applied the principles governing the assessment of illogicality or irrationality in administrative decision-making. The court noted the significant time lapse between the alleged informing in 2001 and the alleged kidnapping in 2008, and the further period of alleged safety between 2009 and 2014, during which the applicant's father remained in Pakistan before emigrating to the United States. The court found that the delegate's assessment of these claims did not reach the threshold of being sufficiently seriously illogical, irrational, or groundless. Consequently, the application for judicial review was dismissed.

Orders