ESQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

The case of ESQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs involved an appeal against a decision of the Federal Circuit Court of Australia. The appellant, a 25-year-old male of Hazara ethnicity and Shia Muslim faith, sought a judicial review of a decision by the Immigration Assessment Authority (IAA) to affirm a delegate’s decision to refuse his application for a protection visa. The appellant argued that the IAA failed to exercise its discretion under section 473DC of the Migration Act 1958 (Cth), specifically by not considering an unarticulated claim raised by the delegate, and that the primary judge erred in finding that this claim had been withdrawn or abandoned.

The court was required to decide whether the IAA was legally unreasonable in failing to exercise its discretion under section 473DC and whether the primary judge erred in his assessment of the unarticulated claim. The court examined the peculiar circumstances of the case, including the appellant’s limited experience in Afghanistan and his fear of religious persecution across the entire country. The court found that the primary judge correctly assessed that the question of relocation within Afghanistan did not apply due to these circumstances.

In its reasoning, the court concluded that the peculiar circumstances of the case distinguished it from the authorities the appellant relied upon. The court found that the primary judge did not err in dismissing the appellant’s claim regarding the unarticulated claim and that the IAA’s failure to exercise its discretion under section 473DC did not amount to legal unreasonableness in the context of this case.

The appeal was allowed on the second ground, and the orders of the primary judge were set aside. The appellant’s application for judicial review was remitted to the Federal Circuit Court of Australia to be reheard according to law, and the Minister was ordered to pay the appellant’s costs of the appeal.