CMV18 v Minister for Immigration - [2019] FCCA 2522

FEDERAL CIRCUIT COURT OF AUSTRALIA

CMV18 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 2522

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Afghanistan – applicant’s claims accepted but Authority finding that he could relocate to Mazar-e-Sharif – whether the Authority erred in considering the reasonableness of relocation considered – jurisdictional error established in that the Authority failed to engage with part of the applicant’s submission on the reasonableness of relocation.

Legislation:

Acts Interpretation Act 1901 (Cth), s.25D
Migration Act 1958 (Cth), ss.5J, 36, 473EA

Cases cited:

SZMCD v Minister for Immigration [2009] FCAFC 46
SZQPY v Minister for Immigration [2013] FCA 1133
SZSJB v Minister for Immigration [2017] FCA 229
SZVRA v Minister for Immigration [2017] FCA 121

Applicant:

CMV18

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 1366 of 2018

Judgment of:

Judge Driver

Hearing date:

6 September 2019

Delivered at:

Sydney

Delivered on:

4 October 2019, by telephone

REPRESENTATION

Counsel for the Applicant:

Mr R Jahnke, by videolink

Solicitors for the Applicant:

Estrin Saul Lawyers

Counsel for the Respondents:

Mr G Johnson

Solicitors for the Respondents:

HWL Ebsworth

ORDERS

A writ of certiorari shall issue removing the record of the Immigration Assessment Authority decision made on 23 April 2018 into this Court for the purpose of quashing it.
A writ of mandamus shall issue, requiring the Immigration Assessment Authority to redetermine according to law the review referred to it.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1366 of 2018

CMV18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 23 April 2018. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the parties.
The applicant is a citizen of Afghanistan who arrived in Australia at Christmas Island on 18 March 2013[1] and on 23 January 2017 applied for a Safe Haven Enterprise Visa.[2] He claimed to fear harm if returned to Afghanistan on 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.

Keep reading for free

Create a free CaseChat account to read CMV18 v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] FCCA 2522
Decision Date: 4 October 2019, by telephone

CaseChat Overview and Summary

The applicant, CMV18, sought review of a decision by the Minister for Immigration that refused to grant him a protection visa. CMV18 claimed a fear of harm in Afghanistan, and while his claims were accepted, the Immigration Assessment Authority found that he could relocate to Mazar-e-Sharif. The case was heard by Judge Driver in the Federal Court of Australia.

The central legal issue before the Court was whether the Immigration Assessment Authority erred in its consideration of the reasonableness of internal relocation for the applicant. Specifically, the Court was required to determine if the Authority had failed to adequately engage with the applicant's submissions regarding the practical and realistic ability of an individual to relocate and re-establish themselves without undue hardship.

Judge Driver reasoned that the assessment of relocation reasonableness requires a fact-intensive analysis that considers the particular circumstances of the applicant, including their personal strengths, weaknesses, skills, and support networks. The Court held that general statements or broad assumptions are insufficient, and a decision-maker must carefully regard the relevant material and the issues raised by the applicant. The Authority's reasoning was found to be at too high a level of abstraction, making bold and broad assumptions about what level of scarcity and meagreness was practicable and reasonable for the applicant to endure. This failure to conduct a detailed, factually grounded assessment constituted jurisdictional error.

The Court found that the applicant had succeeded in establishing that the decision of the Authority was affected by jurisdictional error. Accordingly, orders in the nature of certiorari and mandamus were to be made, and the parties were to be heard as to costs.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Secondly, when dealing with the reasonableness question, the matters to be considered include “particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality”.[61] The “extent of the decision-maker's task will be largely determined by the case sought to be made out by an applicant”,[62] but that is not to say that the task is wholly determined by the applicant’s case. Rather, a “range of issues may become relevant to the question of whether internal relocation is reasonable, depending on the circumstances and the issues raised by an applicant for refugee status, and, when they do, must be carefully regarded by the decision maker”.[63] (emphasis added)[61] SZATV at [24][62] Randhawa at 443[63] MZZQV v Minister for Immigration [2015] FCA 533 at [68] Thirdly, as MZZQV shows, the task of assessing reasonableness requires careful attention to the relevant material. As Mortimer J stated in MZANX, it “involves a fact intensive assessment. Generalities will not suffice”.[64] Her Honour continued at [55]: General statements will be insufficient, because what is in issue is the practical and realistic ability of an individual to re-start her or his life in a new place, without undue hardship… Likewise, the circumstances of that individual — her or his personal strengths and weaknesses, skills, material and family support, will need to be considered in some detail. A broad brush approach will not satisfy the requirements of the task to be performed… [64] MZANX at [51] Absent this careful, factually intensive analysis, “the risk is that the assessment becomes formulaic, and removed from any real factual basis” relevant to the individual in question.[65] [65] MZANX at [56] In my view, it was insufficient for the Authority to deal with the applicant’s submission at such a high level of abstraction. The assumptions made by the Authority were both bold and broad. In my view, the Authority needed to consider what level of scarcity and meagreness was practicable and what level of scarcity and meagreness was reasonable for the applicant to accept in his struggle for existence. Some things should no doubt be assessed against basic standards, such as access to potable water, food, clothing and shelter. Other things might be assessed on a more relativistic basis, because if a person is returning to a third world country, they must expect third world conditions. These may be issues of some subtlety of analysis which was absent from the Authority’s reasoning. The applicant was entitled to expect more and he should receive the relief he seeks. The applicant has succeeded in establishing that the decision of the Authority is affected by jurisdictional error. I will make orders in the nature of the constitutional writs of certiorari and mandamus. I will hear the parties as to costs.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.