AKH16 v Minister for Immigration and Border Protection [2019] FCAFC 47

AKH16 v Minister for Immigration and Border Protection [2019] FCAFC 47

The Tribunal did not misunderstand or misapply the well-founded fear test. Read fairly and as a whole, its reasons showed that it considered the history of violence, the 2013 truce, the improvement in security since 2013, the December 2015 bombing, and the appellant's individual circumstances. It was open to the Tribunal to treat the December 2015 attack as isolated or anomalous in the context of a sustained improvement in security and to find that the appellant's chance of being harmed in future terrorist or sectarian violence in Parachinar was remote rather than a real chance. The Tribunal's references to mere speculation, premature conclusion and a quite high prospect of peace did not...

Jurisdiction
Australia
Judgment Date
18 March 2019
Procedural Posture
Migration Appeal Concerning Judicial Review of a Decision Affirming Refusal of a Protection Visa / Appeal to the Full Court of the Federal Court From Dismissal by the Federal Circuit Court of an Application for Judicial Review
Outcome
Appeal dismissed with costs.
Legal Topics
['protection Visa' 'well Founded Fear of Persecution' 'real Chance Test' 'jurisdictional Error' 'country Information' 'generalised and Sectarian Violence' 'reasonably Foreseeable Future']
['migration Law' 'administrative Law' 'refugee Law'] ['protection Visa' 'well Founded Fear of Persecution' 'real Chance Test' 'jurisdictional Error' 'country Information' 'generalised and Sectarian Violence' 'reasonably Foreseeable Future']

Case Brief

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Procedural Posture

Migration Appeal Concerning Judicial Review of a Decision Affirming Refusal of a Protection Visa / Appeal to the Full Court of the Federal Court From Dismissal by the Federal Circuit Court of an Application for Judicial Review

Legal Issues

  1. 1 ['Whether the Tribunal misunderstood or misapplied the definition of refugee in Article 1A of the Convention and the visa criteria in s 36(2)(a) of the Migration Act 1958 (Cth).' 'Whether the Tribunal erred by treating the 13 December 2015 terrorist attack in Parachinar as anomalous and by concluding it would be premature or mere speculation to find a real chance of future harm.' 'Whether the Tribunal wrongly imposed an onus on the appellant to prove that the reasonably foreseeable future would be definitely different and worse than the recent period of relative calm.' "Whether the Tribunal's reference to the prospect of peace being quite high showed misunderstanding of the principle that a well-founded fear may exist even where the chance of persecution is well below 50 per cent."]

Ratio Decidendi

The Tribunal did not misunderstand or misapply the well-founded fear test. Read fairly and as a whole, its reasons showed that it considered the history of violence, the 2013 truce, the improvement in security since 2013, the December 2015 bombing, and the appellant's individual circumstances. It was open to the Tribunal to treat the December 2015 attack as isolated or anomalous in the context of a sustained improvement in security and to find that the appellant's chance of being harmed in future terrorist or sectarian violence in Parachinar was remote rather than a real chance. The Tribunal's references to mere speculation, premature conclusion and a quite high prospect of peace did not...

Court Disposition

Appeal dismissed with costs.

Orders

  • ['The appeal be dismissed with costs.']