AIP18 v Minister for Home Affairs [2020] FCA 258

AIP18 v Minister for Home Affairs [2020] FCA 258

The Authority did not commit jurisdictional error. Reading its reasons as a whole, its description of risks as credible meant that they were plausible based on past events, but it was still entitled to weigh all the material and conclude that the chance of those risks occurring in the future was remote rather than a real chance for the purposes of s 5J. The Authority also considered the volatile and fluid security situation by reference to country information and the appellant's and his family's past experiences, and made a permissible prediction about future risk.

Jurisdiction
Australia
Judgment Date
24 February 2020
Procedural Posture
Appeal From the Federal Circuit Court's Refusal of Constitutional Writ Relief Concerning an Immigration Assessment Authority Decision Affirming Refusal of a Safe Haven Enterprise (class 790) Visa / Federal Court Appeal
Outcome
Appeal dismissed with costs.
Legal Topics
['safe Haven Enterprise Visa' 'well Founded Fear of Persecution' 'real Chance Test' 'jurisdictional Error' 'immigration Assessment Authority Review' 'shia Hazara Asylum Claims' 'generalised and Insurgent Violence in Afghanistan']
['administrative Law' 'migration Law' 'refugee Law' 'human Rights'] ['safe Haven Enterprise Visa' 'well Founded Fear of Persecution' 'real Chance Test' 'jurisdictional Error' 'immigration Assessment Authority Review' 'shia Hazara Asylum Claims' 'generalised and Insurgent Violence in Afghanistan']

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Procedural Posture

Appeal From the Federal Circuit Court's Refusal of Constitutional Writ Relief Concerning an Immigration Assessment Authority Decision Affirming Refusal of a Safe Haven Enterprise (class 790) Visa / Federal Court Appeal

Legal Issues

  1. 1 ['Whether the Federal Circuit Court erred in finding that the Immigration Assessment Authority correctly applied the real chance test in s 5J of the Migration Act 1958 (Cth).' "Whether the Authority's findings that risks were credible but remote required a conclusion that there was a real chance of serious or significant harm." 'Whether the Authority failed to assess what might happen to the appellant in the reasonably foreseeable future in light of the fluid and volatile security situation in Afghanistan.']

Ratio Decidendi

The Authority did not commit jurisdictional error. Reading its reasons as a whole, its description of risks as credible meant that they were plausible based on past events, but it was still entitled to weigh all the material and conclude that the chance of those risks occurring in the future was remote rather than a real chance for the purposes of s 5J. The Authority also considered the volatile and fluid security situation by reference to country information and the appellant's and his family's past experiences, and made a permissible prediction about future risk.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['The appeal be dismissed.' "The appellant pay the first respondent's costs of the appeal."]