FEDERAL COURT OF AUSTRALIA
DFE16 v Minister for Immigration and Border Protection [2018] FCAFC 177
Appeal from: DFE16 v Minister for Immigration and Border Protection [2017] FCCA 308 File number: NSD 427 of 2017 Judges: REEVES, RANGIAH AND COLVIN JJ Date of judgment: 16 October 2018 Catchwords: MIGRATION - appeal from unsuccessful application to Federal Circuit Court for judicial review of decision by Administrative Appeals Tribunal affirming refusal to grant protection visa - where Tribunal held no real chance of serious harm - whether primary judge erred in finding Tribunal had considered all relevant circumstances - whether Tribunal failed to consider extent of chance of harm together with factors personal to appellant when considering whether relocation would be reasonable - whether primary judge erred in finding Tribunal did not have to consider matters under UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan - consideration of relevant principles regarding failure to consider a matter raised in the context of an application for a protection visa - consideration of principles regarding relocation - no jurisdictional error - appeal dismissed Legislation: Migration Act 1958 (Cth) s 36
Migration Amendment (Complementary Protection) Act 2011 (Cth)
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth)
Cases cited: Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1
Hossain v Minister for Immigration and Border Protection [2018] HCA 34
Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431
Minister for Immigration and Border Protection v SZSCA [2014] HCA 45; (2014) 254 CLR 317
Minister for Immigration and Citizenship v SZRMA [2013] FCAFC 161; (2013) 219 FCR 287
MZACX v Minister for Immigration and Border Protection [2016] FCA 1212
MZYQU v Minister for Immigration and Citizenship [2012] FCA 1032; (2012) 206 FCR 191
MZZJY v Minister for Immigration and Border Protection [2014] FCA 1394
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1
NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695
SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34
Viane v Minister for Immigration and Border Protection [2018] FCAFC 116
Date of hearing: 23 May 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 52 Counsel for the Appellant: Mr LJ Karp Counsel for the First Respondent: Mr T Reilly with Mr B Griffin Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS
NSD 427 of 2017 BETWEEN: DFE16
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGES:
REEVES, RANGIAH AND COLVIN JJ
DATE OF ORDER:
16 OCTOBER 2018
THE COURT ORDERS THAT:
1.The…
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- AGLC
- Dfe16 v Minister for Immigration and Border Protection [2018] FCAFC 177
- Case
- [2018] FCAFC 177
- Decision Date
CaseChat Overview and Summary
In the matter of DFE16 v Minister for Immigration and Border Protection, the appellant contested the refusal of a protection visa by the Minister for Immigration and Border Protection. The Federal Circuit Court denied the appellant's application for judicial review of the Administrative Appeals Tribunal's decision that upheld the Minister's refusal. The appellant argued that the Tribunal had not correctly considered certain factors when deciding the reasonableness of relocating to Mazar-e Sharif, Afghanistan, and that it failed to consider relevant matters under the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan.
The legal issues before the court were whether the Tribunal had erred by not considering the extent of the chance of serious harm and personal factors in the appellant's circumstances when assessing the reasonableness of relocating. The court also considered whether the Tribunal was required to consider specific matters outlined in the UNHCR Guidelines. The court examined these issues in the context of jurisdictional error and the principles governing the consideration of relocation in the context of protection visa applications.
The court found that the Tribunal had indeed considered the types of harm and the appellant's personal circumstances relevant to the relocation decision. The court also found that the Tribunal had considered all pertinent matters regarding the reasonableness of the relocation, including those outlined in the UNHCR Guidelines. The court concluded that the Tribunal's consideration of the materials before it was sufficient, and there was no jurisdictional error. The appeal was dismissed, and the appellant was ordered to pay the costs of the appeal.
1. The appeal be dismissed.
2. The appellant do pay the first respondent's costs of the appeal to be assessed if not agreed.
The legal issues before the court were whether the Tribunal had erred by not considering the extent of the chance of serious harm and personal factors in the appellant's circumstances when assessing the reasonableness of relocating. The court also considered whether the Tribunal was required to consider specific matters outlined in the UNHCR Guidelines. The court examined these issues in the context of jurisdictional error and the principles governing the consideration of relocation in the context of protection visa applications.
The court found that the Tribunal had indeed considered the types of harm and the appellant's personal circumstances relevant to the relocation decision. The court also found that the Tribunal had considered all pertinent matters regarding the reasonableness of the relocation, including those outlined in the UNHCR Guidelines. The court concluded that the Tribunal's consideration of the materials before it was sufficient, and there was no jurisdictional error. The appeal was dismissed, and the appellant was ordered to pay the costs of the appeal.
1. The appeal be dismissed.
2. The appellant do pay the first respondent's costs of the appeal to be assessed if not agreed.
Orders
Orders of the court
1. The appeal be dismissed.
2. The appellant do pay the first respondent's costs of the appeal to be assessed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
The appellant's application for a protection visa was refused by a delegate of the Minister. He sought a review of the decision in the Administrative Appeals Tribunal.The decision of the Tribunal In 2016, the Tribunal (on review of the delegate's decision) found that the appellant did not have a real chance of persecution in all areas of Afghanistan because his chances of being seriously harmed in Mazar‑e Sharif, a city in the north of Afghanistan were remote (para 53). This was not the region of Afghanistan where he had been born. The Tribunal then considered whether it would be reasonable for the appellant to relocate to that area (para 101). It concluded 'on the basis of the evidence before it, and having regard to the [appellant's] circumstances overall', that it was satisfied that it would be reasonable for the appellant to relocate to Mazar‑e Sharif (para 109). On that basis, the Tribunal upheld the decision of the delegate not to grant him a protection visa. The appellant's application to the Federal Circuit Court for judicial review of the Tribunal's decision was refused.Grounds of appeal and outcome The appellant now brings an appeal in this Court and raises two grounds. First, the appellant says that the primary judge erred in finding that the Tribunal had considered all of the circumstances relevant to the appellant's relocation to Mazar‑e Sharif. Rather, there should have been a finding that the Tribunal failed to bring to account the extent of the chance of the appellant being seriously harmed together with factors personal to the appellant when deciding whether it would be reasonable for the appellant to relocate to Mazar‑e Sharif. Second, the appellant says that the primary judge erred in finding that the Tribunal did not have to consider certain matters mentioned in UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan (UNHCR Guidelines) when the Tribunal was obliged to consider those matters. For the following reasons, the appeal grounds should not be upheld. As to the first ground, the primary judge correctly found that the Tribunal considered the types of harm that the appellant advanced in support of his claim that it would not be reasonable to relocate. As to the second ground, the primary judge correctly found that the Tribunal considered all the matters particular to the appellant as to whether it was reasonable for him to relocate to Mazar‑e Sharif and there was no claim that was otherwise apparent on the materials before the Tribunal that it failed to consider.Relevant principles The claims made in support of the appeal are not based upon an alleged failure by the Tribunal to afford procedural fairness. Rather, they are claims of jurisdictional error on the basis that the Tribunal did not discharge its statutory task. Recently, in Hossain v Minister for Immigration and Border Protection [2018] HCA 34 at [24], Kiefel CJ, Gageler and Keane JJ explained jurisdictional error in a statutory decision‑making process as referring to 'a failure to comply with one or more statutory preconditions or conditions to an extent which results in a decision which has been made in fact lacking the characteristics necessary for it to be given force and effect by the statute pursuant to which the decision-maker purported to make it'. Further, statutes ordinarily are to be interpreted as incorporating a threshold of materiality in the event of non-compliance before there will be a failure to meet the requirements of the statute in a manner that will be jurisdictional: at [29]. The threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if compliance 'could have made no difference to the decision that was made in the circumstances in which the decision was made': at [30]. Otherwise, the merits of administrative action, to the extent that they can be distinguished from legality, are solely a matter for the repository of the relevant power: Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 at 35‑36.
Ratio Decidendi
Legal Principle Established
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