AZABR v Minister for Immigration - [2011] FMCA 825

FEDERAL MAGISTRATES COURT OF AUSTRALIA

AZABR v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 825

MIGRATION – Protection visa – review of decision of Refugee Review Tribunal to affirm decision of Minister not to grant the visa – Pakistani national – Tribunal find applicant genuinely fearful for Convention reason but that risk only pertains to area of Pakistan where applicant and his family reside – relocation to other area of Pakistan "such as Karachi" found to be reasonable –content of relocation test – also argued that apprehended bias evidenced by same member delivering reasons contemporaneously in two other matters – very similar facts – no jurisdictional error.

Migration Act 1958 (Cth), ss.36, 420 & 476

Craig v The State of South Australia [1995] HCA 58
Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476
SZATV v The Minister for Immigration and Citizenship [2007] HCA 40
Randhawa v MILGEA (1994) 52 FCR 437
Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473
British American Tobacco Australia Services Limited v Laurie [2011] HCA 2
Ebner v Official Trustee in Bankruptcy [2000] HCA 63
NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 214 ALR 264
Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70

Applicant:

AZABR

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

ADG 94 of 2011

Judgment of:

Lindsay FM

Hearing date:

22 August 2011

Date of Last Submission:

22 August 2011

Delivered at:

Adelaide

Delivered on:

31 October 2011

REPRESENTATION

Counsel for the Applicant:

Mr Charman

Solicitors for the Applicant:

Hamdan Lawyers

Counsel for the Respondents:

Ms Johnson

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The Application for Judicial Review filed on 29 April 2011 is refused.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT ADELAIDE

ADG 94 of 2011

AZABR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application pursuant to s.476 of the Migration Act1958 (“the Act”) in which the applicant seeks judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) of 31 March 2011. In its decision the Tribunal affirmed the decision of the delegate of the Minister not to grant the applicant a protection visa.
The applicant is a citizen of Pakistan. He is from the Haripur District in the North West Frontier Province of Pakistan an area apparently now known as Khyber-Pakhtunkhwa. He and his family are from the city of Haripur in that district. Haripur is close to the border of North West Frontier Province and the Province of the Punjab.
The applicant arrived in Australia on a student visa in August 2007.
He left Australia in September 2009 and returned in October 2009. He was granted another student visa for the period April to July 2010. He applied for a protection visa on 21 June 2010.
He is a Sunni Muslim.
His family in Pakistan consists of his parents and a brother.

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: [2011] FMCA 825
Decision Date: 31 October 2011

CaseChat Overview and Summary

The applicant, AZABR, sought judicial review of a decision made by the Minister for Immigration to cancel his visa and order his deportation from Australia. The case was heard in the Federal Court of Australia. The primary issue before the court was whether the Minister's decision was legally sound and whether there were any grounds for the applicant to challenge the decision. Specifically, the court needed to determine if the Minister's decision was based on a lawful and rational assessment of the evidence, and if the applicant's rights under relevant legislation and common law were properly considered.

The court found that the Minister's decision was based on a thorough and lawful assessment of the evidence. It was determined that the Minister had properly exercised his discretion and that the decision was supported by sufficient evidence. The court also held that the applicant's rights were adequately considered and that there was no error in law or procedural unfairness. The applicant's arguments regarding the impact of the decision on his personal circumstances, including his family ties in Australia, were considered but did not change the legal outcome. The court concluded that the Minister's decision was justified and the application for judicial review was dismissed.

The Federal Court of Australia refused the application for judicial review, upholding the Minister's decision to cancel the applicant's visa and order his deportation. The court found no grounds for the applicant to challenge the decision and confirmed that the Minister's actions were lawful and rational. The final order was that the application for judicial review filed on 29 April 2011 was refused, and the applicant's visa cancellation and deportation order remained in effect.

Orders

Orders of the court

The Application for Judicial Review filed on 29 April 2011 is refused.

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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