FMN17 v MICMSMA

In the case of FMN17 v MICMSMA, the infant appellant, born in Western Australia to parents who are citizens of the Islamic Republic of Pakistan, appeals against a decision of the Federal Circuit Court of Australia that dismissed her application for judicial review of a decision by the Administrative Appeals Tribunal (the Tribunal). The Tribunal had affirmed a decision by a delegate of the Minister for Immigration and Citizenship (the Minister) to refuse the appellant’s application for a protection visa. The appellant claims that if she is returned to Pakistan, she will be forced into an arranged marriage and suffer significant harm. The legal issues before the Court were whether the Tribunal erred in dismissing the application for judicial review and whether the Tribunal misapplied s. 36(2)(aa) of the Migration Act 1958 (Cth.) or failed to consider whether there was a real risk that the appellant would suffer “significant harm” as defined in s. 36(2A).

The Court found that the Tribunal had erred in dismissing the appellant’s application for judicial review. The Tribunal had not properly considered the risk of forced marriage and the possibility of significant harm to the appellant. The Court held that the Tribunal had misapplied s. 36(2)(aa) of the Migration Act 1958 (Cth.) by failing to properly consider the evidence and the risk of forced marriage. The Court also held that the Tribunal had failed to consider whether there was a real risk that the appellant would suffer “significant harm” as defined in s. 36(2A) of the Migration Act 1958 (Cth.). The Court found that the Tribunal’s approach to the evidence was flawed and that the decision was unreasonable. The Court concluded that the Tribunal had not properly considered the risk of forced marriage and the possibility of significant harm to the appellant.

The Court allowed the appeal and set aside the orders made by the Federal Circuit Court on 28 November 2018. In lieu thereof, the Court made an order in the nature of certiorari to quash the decision of the Tribunal dated 23 November 2017 and an order in the nature of mandamus remitting the matter to the Tribunal to be re-determined in accordance with law. The Court also ordered that the appellant’s costs be paid by the Minister.