BIG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 223

BIG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 223

The IAA failed to give active intellectual consideration to whether the appellant could reasonably relocate his wife and children to Kabul, specifically failing to address the practical difficulties of providing for them, including access to water and sanitation; this amounted to a jurisdictional error, warranting quashing of its decision and remittal for reconsideration.

Jurisdiction
Australia
Judgment Date
15 March 2022
Procedural Posture
Appeal / Judgment on Appeal From Federal Circuit Court to Federal Court
Outcome
Appeal allowed. Judgment of primary judge set aside. Orders of certiorari and mandamus issued; matter remitted to the IAA for redetermination according to law. Minister ordered to pay the costs of proceedings before both courts.
Legal Topics
['complementary Protection' 'reasonableness of Relocation' 'jurisdictional Error' 'access to Basic Services (water, Sanitation)' 'family Unity and Relocation']
['administrative Law' 'migration Law' 'human Rights'] ['complementary Protection' 'reasonableness of Relocation' 'jurisdictional Error' 'access to Basic Services (water, Sanitation)' 'family Unity and Relocation']

Case Brief

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Procedural Posture

Appeal / Judgment on Appeal From Federal Circuit Court to Federal Court

Legal Issues

  1. 1 ["Whether the IAA failed to actively and adequately consider the appellant's submission regarding access to clean water and sanitation when assessing reasonableness of relocation to Kabul under s 36(2B) Migration Act 1958 (Cth)" "Whether the IAA erred by failing to consider whether it would be reasonable for the appellant's wife and children to relocate to Kabul"]

Ratio Decidendi

The IAA failed to give active intellectual consideration to whether the appellant could reasonably relocate his wife and children to Kabul, specifically failing to address the practical difficulties of providing for them, including access to water and sanitation; this amounted to a jurisdictional error, warranting quashing of its decision and remittal for reconsideration.

Court Disposition

Appeal allowed. Judgment of primary judge set aside. Orders of certiorari and mandamus issued; matter remitted to the IAA for redetermination according to law. Minister ordered to pay the costs of proceedings before both courts.

Orders

  • ['The appeal be allowed.' "Set aside the orders of the Federal Circuit Court of Australia made on 7 April 2020 and in their place order that: (a) writs of certiorari and mandamus be issued quashing the decision made by the second respondent on 23 February 2017 and remitting the matter to the second respondent to be...