AJQ16 v Minister for Immigration and Border Protection [2018] FCA 244

AJQ16 v Minister for Immigration and Border Protection [2018] FCA 244

The Tribunal failed to engage with the real risk of recurrence of serious harm accepted as past fact, required by the Migration Act 1958 (Cth) for complementary protection assessment. Tribunal's reasoning on relocation and complementary protection was conducted in a vacuum and did not properly address the substance of the appellant's claim; thus, the Tribunal's statutory review task remained incomplete. The appeal is allowed, Tribunal's affirmation quashed, review remitted.

Jurisdiction
Australia
Judgment Date
27 February 2018
Procedural Posture
Appeal / Judgment on Appeal From Federal Circuit Court, Appellate Review of Tribunal Decision
Outcome
Appeal allowed; Tribunal's decision quashed; Review remitted for reconsideration according to law
Legal Topics
['migration Law' 'protection Visas' 'judicial Review' 'complementary Protection' 'jurisdictional Error' 'tribunal Statutory Duty' 'relocation' 'costs Order']
['administrative and Constitutional Law and Human Rights'] ['migration Law' 'protection Visas' 'judicial Review' 'complementary Protection' 'jurisdictional Error' 'tribunal Statutory Duty' 'relocation' 'costs Order']

Case Brief

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Procedural Posture

Appeal / Judgment on Appeal From Federal Circuit Court, Appellate Review of Tribunal Decision

Legal Issues

  1. 1 ['Whether the Tribunal failed to discharge its statutory obligation of review under Migration Act 1958 (Cth)' 'Whether the Tribunal failed to satisfy itself that the appellant feared persecution for a Convention reason' 'Whether the appellant would face a real risk of harm if returned to Sri Lanka' 'Whether Tribunal failed to give proper, genuine, and realistic consideration to claims apparent on the material before it' 'Whether leave should be granted to rely on grounds not advanced below']

Ratio Decidendi

The Tribunal failed to engage with the real risk of recurrence of serious harm accepted as past fact, required by the Migration Act 1958 (Cth) for complementary protection assessment. Tribunal's reasoning on relocation and complementary protection was conducted in a vacuum and did not properly address the substance of the appellant's claim; thus, the Tribunal's statutory review task remained incomplete. The appeal is allowed, Tribunal's affirmation quashed, review remitted.

Court Disposition

Appeal allowed; Tribunal's decision quashed; Review remitted for reconsideration according to law

Orders

  • ['Appellant granted leave to rely on amended notice of appeal' 'Appeal granted' 'Decision of Second Respondent quashed; review remitted to Second Respondent for determination according to law' "First Respondent to pay Appellant's costs of the appeal" 'Parties to file and serve costs submissions within 7 days as to...