CRU18 v Minister for Home Affairs

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 31 July 2020
• Neutral Citation: [2020] FCAFC 129
• Date: 31 July 2020

FEDERAL COURT OF AUSTRALIA

CRU18 v Minister for Home Affairs [2020] FCAFC 129

Appeal from:	CRU18 v Minister for Home Affairs & Anor [2019] FCCA 2394
File number:	VID 1033 of 2019
Judges:	WIGNEY, JACKSON AND SNADEN JJ
Date of judgment:	31 July 2020
Catchwords:	MIGRATION – protection visa – appeal from decision of the Federal Circuit Court of Australia (the “FCCA”) – application for judicial review of a decision of the Immigration Assessment Authority (“IAA”) – decision of the first respondent refusing application for a protection visa – whether the IAA decision was a product of jurisdictional error – whether alleged error of fact made by the IAA sufficiently material to constitute jurisdictional error – appeal dismissed ; PRACTICE AND PROCEDURE – whether leave ought to be granted to advance ground of appeal not advanced before the FCCA – whether explanation for failing to advance additional ground before the FCCA persuasive – whether the proposed appeal ground has sufficient merit – leave refused
Legislation:	Migration Act 1958 (Cth) pt 7AA; ss 5AA, 5H, 5J and 36
Cases cited:	AJZ17 v Minister for Home Affairs [2019] FCA 1485 Applicant A v Minister for Immigration (1997) 190 CLR 225 BNH16 v Minister for Immigration and Border Protection [2017] FCAFC 109 Chen Shi Hai v Minister for Immigration (2000) 201 CLR 293 CKC16 v Minister for Immigration and Border Protection [2018] FCA 1260 CQG15 v Minister for Immigration (2016) 253 FCR 496 CRU18 v Minister for Home Affairs & Anor [2019] FCCA 2394 DPI17 v Minister for Home Affairs (2019) 269 FCR 134 DYS16 v Minister for Immigration and Border Protection (2018) 260 FCR 260 Hossain v Minster for Immigration and Border Protection (2018) 264 CLR 123 Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Minister for Immigration v Applicant Z (2001) 116 FCR 36 Minister for Immigration v VFAY [2003] FCAFC 191 Muggeridge v Minister for Immigration and Border Protection (2017) 255 FCR 81 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 NACM of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1554 NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 167 Perampalam v Minister for Immigration (1999) 84 FCR 274 Ram v Minister for Immigration (1995) 57 FCR 565 Re Minister for Immigration and Multicultural Affairs; ex parte Cohen (2001) 75 ALJR 542 Singh v Minister for Home Affairs [2020] FCAFC 7 SZLPH v Minister for Immigration and Border Protection [2018] FCAFC 145 SZTEQ v Minister for Immigration (2015) 229 FCR 497
Date of hearing:	26 February 2020
Registry:	Victoria
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	50
Counsel for the Appellant:	Mr A White
Solicitor for the Appellant:	Victoria Legal Aid
Counsel for the First Respondent:	Mr G Hill
Solicitor for the First Respondent:	Mills Oakley
Solicitor for the Second Respondent:	The Second Respondent filed a submitting notice, save as to costs

ORDERS

		VID 1033 of 2019
BETWEEN:	CRU18 Appellant
AND:	MINISTER FOR HOME AFFAIRS First Respondent ; IMMIGRATION ASSESSMENT AUTHORITY Second Respondent

JUDGES:	WIGNEY, JACKSON AND SNADEN JJ
DATE OF ORDER:	31 JULY 2020

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the first respondent’s costs of the appeal, to be assessed in default of agreement in accordance with the court’s Costs Practice Note (GPN-COSTS).

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

REASONS FOR JUDGMENT

THE COURT:

1. The appellant is a citizen of Iran. He is of Kurdish ethnicity and hails from the Badreh district of Ilam province, in Iran’s west. In May of 2013, he flew from Iran to Indonesia using a recently-acquired Iranian passport. He arrived in Jakarta and then flew to the port city of Makassar. There, he boarded a “very small fishing boat” bound for Australia, having paid “people smugglers” US$6,000.00 to that end. He surrendered his Iranian passport to one such smuggler on the night prior to his departure from Indonesia. He arrived in Australia on 4 June 2013 as an “unauthorised maritime arrival” (within the meaning attributed to that phrase by the Migration Act 1958 (Cth)—hereafter, the “Act”).

2. In February 2017, he made an application under the Act for a Temporary Protection Class XD (Subclass 785) visa (hereafter, the “Visa Application”). That application was dismissed by a delegate of the first respondent (hereafter, the “Minister”) on 9 March 2018. That decision (hereafter, the “Delegate’s Decision”) was then automatically referred to the second respondent (hereafter, the “IAA”) for review under pt 7AA of the Act. On 8 May 2018, the IAA affirmed the Delegate’s Decision to dismiss the appellant’s Visa Application and provided written reasons for doing so (that affirmation is referred to hereafter as the “IAA Decision”).

3. By an amended originating application dated 24 January 2019, the appellant sought judicial review of the IAA Decision in the Federal Circuit Court of Australia (hereafter, the “FCCA”). He contended that the IAA Decision was the product of jurisdictional error and ought to be set aside via a grant of prerogative relief. That application (hereafter, the “Judicial Review Application”) was dismissed with costs on 30 August 2019: CRU18 v Minister for Home Affairs & Anor [2019] FCCA 2394 (Judge Mercuri). It is from that judgment (hereafter, the “Primary Judgment”) that the appellant now appeals.

4. The grounds of appeal are considered in detail below. By way of summary, the appellant submits that the FCCA erred by not accepting that the IAA Decision was attended by jurisdictional error. For the reasons that follow, we do not agree. The appeal will be dismissed with costs.

The Visa Application

5. The appellant’s Visa Application was premised upon his Kurdish ethnicity and what he claimed was his family’s history of political activism broadly aligned with the service of Kurdish interests. He submitted that, if he returned to Iran, he would be persecuted on account of actual or imputed political opinions and/or his Kurdish ethnicity, or would otherwise be subjected to significant harm.

6. In support of those primary contentions, the appellant claimed that he and members of his family had been the victims of official discrimination on account of their ethnicity and political profile in Iran. That discriminatory conduct was said to have manifested in the denial of education and employment opportunities, the confiscation of family land, arbitrary imprisonment, torture and physical abuse, and the killing of the appellant’s father.

7. Many of the appellant’s claims focused upon his father’s history as an agitator for Kurdish rights or freedoms. Of present significance is the content of a letter dated 20 February 2017, under which the appellant’s migration agent...