CJE19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

• Jurisdiction: Australia Federal only
• Judgment Date: 06 November 2020
• Neutral Citation: [2020] FCA 1620
• Court: Federal Court
• Date: 06 November 2020

Federal Court of Australia

CJE19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1620

Appeal from:	CJE19 v Minister for Immigration & Anor [2020] FCCA 267
File number:	NSD 305 of 2020
Judgment of:	BEACH J
Date of judgment:	6 November 2020
Catchwords:	MIGRATION – appeal from the Federal Circuit Court – application for a temporary protection visa – refusal by delegate – decision of Immigration Assessment Authority to affirm delegate’s decision – illogicality or irrationality – failure to give consideration to evidence – whether unreasonable failure to exercise power under s 473DC(3) of the Migration Act 1958 (Cth) – jurisdictional error established – appeal allowed
Legislation:	Migration Act 1958 (Cth) s 473DC(3)
Cases cited:	ABT17 v Minister for Immigration and Border Protection [2020] HCA 34 APE16 v Minister for Home Affairs [2020] FCAFC 93 CSO15 v Minister for Immigration and Border Protection (2018) 260 FCR 134 Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475 Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	103
Date of hearing:	16 October 2020
Counsel for the Appellant:	Dr A McBeth
Solicitor for the Appellant:	Clothier Anderson & Associates
Counsel for the First Respondent:	Ms K Hooper
Solicitor for the First Respondent:	Mills Oakley
Counsel for the Second Respondent:	The Second Respondent filed a submitting notice save as to costs

ORDERS

		NSD 305 of 2020
BETWEEN:	CJE19 Appellant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ; IMMIGRATION ASSESSMENT AUTHORITY Second Respondent

order made by:	BEACH J
DATE OF ORDER:	6 November 2020

THE COURT ORDERS THAT:

1. There be an extension of time within which to appeal.

2. The appeal be allowed.

3. Orders 2 and 3 of the judgment of the Federal Circuit Court given on 12 February 2020 be set aside and in lieu thereof it be ordered that:

   1. The decision of the second respondent made on 14 May 2019 be set aside.

   2. The matter be remitted to the second respondent for consideration and determination according to law.

   3. The first respondent pay the applicant’s costs of and incidental to his amended application for judicial review.

4. The first respondent pay the appellant’s costs of and incidental to his appeal.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BEACH J:

1. The appellant appeals from a decision of the Federal Circuit Court which dismissed an application for judicial review of a decision of the Immigration Assessment Authority made on 14 May 2019 that had affirmed a decision of a delegate of the Minister not to grant to the appellant a temporary protection visa (the visa) under the Migration Act 1958 (Cth).

2. The appellant, who is a citizen of Iraq, left Iraq for Australia in January 2013. He applied for the visa on 26 May 2016, after the lifting of the statutory bar preventing protection visa applications from boat arrivals. He claimed a well-founded fear of persecution if he was returned to Iraq. The basis of his claim included his father’s status as a former senior member of the Ba’ath Party and a former mayor in the Karbala area and the appellant’s Sunni religion and membership of the Al-Janabi tribe, all of which he claimed led to him being targeted by Shia militants.

3. The appellant attended interviews with the Minister’s delegate on 5 October 2016 and 7 November 2016. He also provided a statutory declaration made on 13 May 2016. The delegate refused the visa on 14 December 2016.

4. The Authority reviewed the delegate’s decision and affirmed it on 6 February 2017. That decision was then quashed by the Federal Circuit Court on 11 February 2019.

5. Upon remittal to the Authority, which was differently constituted, the appellant provided a second statutory declaration made on 26 February 2019 regarding developments in his family’s situation in Iraq since the time of the Authority’s first decision some two years earlier.

6. In his second statutory declaration, the appellant explained that his family and his uncle’s family in March 2017 had fled to Kirkuk in northern Iraq after a bomb had been placed at the rented house in Haswa where his family were then living that had killed his uncle. He further stated that his family continued to live in Kirkuk at the time of his second statutory declaration.

7. On 14 May 2019, the Authority again affirmed the decision of the delegate to refuse the visa. The appellant then sought judicial review of the Authority’s further decision in the Court below.

8. On 12 February 2020, the primary judge dismissed the appellant’s application for judicial review. The appellant appeals that decision, although he required an extension of time within which to appeal, which extension I granted at the commencement of the hearing.

9. For the following reasons, I would allow the appeal.

FACTUAL BACKGROUND

10. The appellant was born in a city in the province of Karbala in southern Iraq. But his most recent address in Iraq before coming to Australia was in Baghdad, where he lived between November 2012 and 12 January 2013. For over a decade up to November 2012, the appellant lived at an address in Karbala. The appellant completed his schooling in Karbala. And he had been employed at a location in Karbala.

11. In an entry interview conducted on 23 May 2013, the appellant provided details of his mother and father, both then at the time of that interview residing in Baghdad. He also provided details of his two sisters residing in Karbala and his five brothers residing in Baghdad.

12. As I have said, the appellant applied for the visa on 26 May 2016. Consistently with the information provided by the appellant at his entry interview, the appellant indicated that he had lived, attended school and worked, from birth to November 2012, in Karbala.

13. The appellant claimed to fear harm in Iraq because of his Sunni Muslim religion, his father’s status as a former Ba’ath party member and former mayor in the Karbala area, and the appellant being a member of the Sunni Al-Janabi tribe.

14. As I have said, the delegate refused the appellant’s visa application on 14 December 2016. The delegate found that he was not in any danger in Karbala. The delegate’s decision was referred for review by the Authority.

15. On 6 February 2017, the Authority affirmed the delegate’s decision. Relevantly, the Authority found that the appellant’s family had not left Karbala in 2007 as the appellant claimed, that the appellant had worked in Karbala all his life and had family and friends there, and that there was only a remote chance that the appellant would suffer harm in Karbala as a Sunni Muslim if he was returned there.

16. The Authority’s decision was quashed by consent orders made by the Federal Circuit Court on 11 February 2019 and referred back to a...