BBO16 v Minister for Immigration and Border Protection [2017] FCA 212

BBO16 v Minister for Immigration and Border Protection [2017] FCA 212

The appeal failed because the appellant was not denied procedural fairness and no error by the primary judge was shown. The delegate's questioning was directed to relocation anywhere in Pakistan and included a reference to Islamabad; the delegate's decision was not confined to Lahore; and the appellant's submissions and statutory declaration before the Immigration Assessment Authority addressed relocation to Lahore and elsewhere in Pakistan. The appellant therefore was not misled and had an opportunity to contend that relocation anywhere in Pakistan would be unreasonable. Because the claimed procedural unfairness was not established, the appellant did not show that the delegate or the...

Jurisdiction
Australia
Judgment Date
09 March 2017
Procedural Posture
Migration Appeal From Federal Circuit Court Judicial Review Decision Concerning Refusal of a Subclass 790 Safe Haven Enterprise Visa / Appeal to the Federal Court of Australia From Dismissal of Judicial Review Application
Outcome
Appeal dismissed; leave granted to amend ground 1; leave refused to add ground 5; appellant ordered to pay the first respondent's costs as agreed or assessed.
Legal Topics
['complementary Protection' 'internal Relocation' 'procedural Fairness' 'jurisdictional Error' 'safe Haven Enterprise Visa' 'application to Amend Notice of Appeal']
['migration Law' 'administrative Law' 'practice and Procedure'] ['complementary Protection' 'internal Relocation' 'procedural Fairness' 'jurisdictional Error' 'safe Haven Enterprise Visa' 'application to Amend Notice of Appeal']

Case Brief

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Procedural Posture

Migration Appeal From Federal Circuit Court Judicial Review Decision Concerning Refusal of a Subclass 790 Safe Haven Enterprise Visa / Appeal to the Federal Court of Australia From Dismissal of Judicial Review Application

Legal Issues

  1. 1 ['Whether the primary judge erred in finding that the appellant had not been denied procedural fairness in relation to relocation to Islamabad.' 'Whether the primary judge erred in concluding that the relocation test for complementary protection under s 36(2)(aa) and s 36(2B)(a) of the Migration Act 1958 (Cth) had been correctly applied.' "Whether leave should be granted to amend the notice of appeal to add a new ground alleging jurisdictional error based on the Immigration Assessment Authority's failure to exercise power under s 473DC(3)."]

Ratio Decidendi

The appeal failed because the appellant was not denied procedural fairness and no error by the primary judge was shown. The delegate's questioning was directed to relocation anywhere in Pakistan and included a reference to Islamabad; the delegate's decision was not confined to Lahore; and the appellant's submissions and statutory declaration before the Immigration Assessment Authority addressed relocation to Lahore and elsewhere in Pakistan. The appellant therefore was not misled and had an opportunity to contend that relocation anywhere in Pakistan would be unreasonable. Because the claimed procedural unfairness was not established, the appellant did not show that the delegate or the...

Court Disposition

Appeal dismissed; leave granted to amend ground 1; leave refused to add ground 5; appellant ordered to pay the first respondent's costs as agreed or assessed.

Orders

  • ['The appellant have leave to amend ground 1 in the form of the proposed amended notice of appeal filed on 24 February 2017.' 'Leave be refused to the appellant to add ground 5 in the form of the proposed amended notice of appeal filed on 24 February 2017.' 'The appeal be dismissed.' 'The appellant pay the costs of...