AIA16 v Minister for Immigration - [2018] FCCA 3495

FEDERAL CIRCUIT COURT OF AUSTRALIA

AIA16 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 3495

Catchwords:
MIGRATION – Protection visa – ITOA – relocation – reasonableness of the applicant relocating to Kabul – relevant test not applied – ITOA failing to apply correct legal principles – ITOA defective – declarations made.

Legislation:

Migration Act 1958, ss.5H, 5J, 36(2)(aa), 48B, 195A, 417

Cases Cited:

AHK16 v Minister for Immigration and Border Protection [2018] FCAFC 106

CSJ17 v Minister for Immigration and Border Protection (2018) 328 FLR 431

Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24

Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180

Minister for Immigration and Citizenship v MZYYL [2012] FCAFC 147

Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505

Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273

MZACX v Minister for Immigration and Border Protection [2016] FCA 1212

MZANX v Minister for Immigration and Border Protection [2017] FCA 307

MZANX v Minister for Immigration and Border Protection [2017] FCCA 2564

Plaintiff M61/2010E v Commonwealth of Australia (2010) 243 CLR 319

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
SZBJI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 216

SZRFP v Minister for Immigration and Border Protection [2016] FCA 522

SZSLM v Minister for Immigration and Border Protection [2017] FCA 413

SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69

SZVRA v Minister for Immigration and Border Protection [2017] FCA 121

Other Materials:

Convention Against Torture or Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, [1989] ATS 21 (entered into force 26 June 1987)
Convention on the Rights of the Child, opened for signature 20 November 1989, [1991] ATS 4 (entered into force 2 September 1990)

Convention relating to the Status of Refugees, opened for signature 28 July 1951, [1954] ATS 5 (entered into force 22 April 1954)

International Covenant on Civil and Political Rights, opened for signature 19 December 1966, [1980] ATS 23 (entered into force 23 March 1976)
Second Optional Protocol to the International Convention on Civil and Political Rights, Aiming at the Abolition of the Death Penalty, opened for signature 15 December 1989, [1991] ATS 19 (entered into force 11 July 1991)

Applicant:

AIA16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ERNEST ZANATA IN HIS CAPACITY AS MANAGER, TPVA ASSESSMENT VICTORIA

File Number:

MLG 272 of 2016

Judgment of:

His Honour Judge Wilson

Hearing date:

10 September 2018

Date of Last Submission:

10 September 2018

Delivered at:

Melbourne

Delivered on:

30 November 2018

REPRESENTATION

Counsel for the Applicant:

Dr A McBeth

Solicitors for the Applicant:

Asylum Seeker Resource Centre

Counsel for the First Respondent:

Mr B Petrie

Solicitors for the First Respondent:

Australian Government Solicitor

Counsel for the Second Respondent:

No appearance

Solicitors for the…

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: [2018] FCCA 3495
Decision Date: 30 November 2018

CaseChat Overview and Summary

In *AIA16 v Minister for Immigration*, the applicant sought judicial review of a decision made by the Immigration Assessment Authority (IAA) concerning their application for a protection visa. The core of the dispute revolved around the IAA's assessment of the reasonableness of the applicant relocating to Kabul, Afghanistan, as a potential alternative to remaining in their home province.

The primary legal issue before the Federal Circuit and Family Court of Australia was whether the IAA had applied the correct legal principles when considering the applicant's ability to relocate to Kabul. Specifically, the court was required to determine if the IAA had properly assessed the reasonableness of such a relocation in the context of the applicant's protection claims.

His Honour Judge Wilson found that the IAA had failed to apply the correct legal test for assessing the reasonableness of relocation. The IAA's decision was therefore found to be defective because it did not properly engage with the relevant legal principles governing this aspect of protection visa applications. Consequently, the court made declarations to this effect.

Orders