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BXN16 v Minister for Immigration

BXN16 v Minister for Immigration

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Case Copied 24 October 2019 42 min read

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FEDERAL CIRCUIT COURT OF AUSTRALIA

BXN16 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 2820

Catchwords:
MIGRATION – Protection visa application – where Taliban targets applicant because of his political activities – where Tribunal finds that applicant would face a real chance of serious harm now or in the future if he returned to the Khyber Pakhtunkhwa – whether applicant could relocate to another area – where Tribunal finds it would be reasonable for applicant to relocate to Lahore or another urban area outside the Khyber Pakhtunkhwa – where Tribunal correctly identifies the test to be applied for internal relocation – where Tribunal fails to apply that test – where Tribunal adopts an overly narrow focus – where Tribunal fails to properly assess past and present events relevant to the evaluation of the risk of harm – where Tribunal’s decision is affected by jurisdictional error – application allowed.

PRACTICE AND PROCEDURE – where applicant seeks to raise grounds of review having submitted that it was unnecessary to make submissions to Tribunal on relevant aspect of test for internal relocation – whether having made such submission, applicant should be permitted to advance ground of judicial review – whether applicant should be granted leave to amend application for judicial review so as to raise ground not raised below – applicable principles – whether expedient and in interests of justice to allow amendment – where merit of the proposed ground is an important consideration – relevance of forensic decision not to make submissions where matter is remitted – application refused.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r 7.01

Migration Act 1958 (Cth), ss 36, 65, 91R, 430, 474, 476

Cases cited:

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

AIE15 v Minister for Immigration and Border Protection [2018] FCA 610

Appellant S395/2002 v Minister for Immigration and Multicultural Affairs

(2003) 216 CLR 473

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous

Affairs (2003) 236 FCR 593

BHB16 v Minister for Immigration and Border Protection[2018] FCAFC 42

BLX16 v Minister for Immigration and Border Protection [2019] FCAFC 176

BMR17 v Minister for Immigration [2018] FCA 1250

BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94

CDW18 v Minister for Home Affairs [2019] FCA 270

CED15 v Minister for Immigration and Border Protection [2018] FCA 451

CID15 v Minister for Immigration and Border Protection [2017] FCA 780

Coulton v Holcombe (1986) 162 CLR 1

CRI026 v The Republic of Nauru [2018] HCA 19

CRI028 v The Republic of Nauru [2018] HCA 24

CSO15 v Minister for Immigration and Border Protection[2018] FCAFC 14

DAK16 v Minister for Immigration and Border Protection [2019] FCA 683

DAO16 v Minister for Immigration and Border Protection (2018) 353 ALR 641

DWN027 v The Republic of Nauru [2018] HCA 20

Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431

Minister for Immigration and Border Protection v SZSCA (2014) 254 CLR 317

Minister for Immigration and Border Protection v…

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: [2019] FCCA 2820
Decision Date: 24 October 2019

CaseChat Overview and Summary

The applicant, BXN16, sought judicial review of a decision by the Minister for Immigration concerning his application for a protection visa. The dispute centred on the applicant's claim that he would face a real chance of serious harm if returned to the Khyber Pakhtunkhwa region due to his political activities targeting by the Taliban. The Administrative Appeals Tribunal had found that while the applicant might face harm in his home region, it would be reasonable for him to relocate to an urban area such as Lahore. The matter came before Judge A Kelly of the Federal Circuit and Family Court of Australia.

The primary legal issue before the court was whether the Tribunal had erred in its assessment of the applicant's claim for a protection visa. Specifically, the court was required to determine if the Tribunal had correctly identified and applied the legal test for internal relocation, and whether its assessment of the risk of harm, considering past and present events, was adequate. A secondary issue concerned the applicant's attempt to raise new grounds of review, including whether he should be permitted to amend his application to include grounds not previously submitted to the Tribunal.

The court found that while the Tribunal had correctly identified the legal test for internal relocation, it had failed to properly apply that test. The Tribunal's focus was considered overly narrow, and it did not adequately assess the relevant past and present events in evaluating the risk of harm to the applicant. This failure constituted a jurisdictional error, vitiating the Tribunal's decision. However, the court refused the applicant's request to amend his application to raise new grounds of review, finding that it was not expedient or in the interests of justice to allow the amendment, particularly given the merit of the proposed new ground and the fact that the matter was being remitted. The application for judicial review was allowed.

Orders