BSU20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 642

BSU20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 642

The IAA fell into jurisdictional error because, although it considered risk in Pakistan and Kurrum Agency generally, it failed to address two central matters before it: the appellant's express submissions that the security situation in Kurrum Agency was fragile, volatile and at risk of deterioration, and the DFAT 2019 Report assessment that Turis in Kurrum Agency still face a moderate risk of sectarian violence from militant groups because of their Shia faith. The IAA could not reason to a conclusion that there was no real chance of the appellant suffering any harm in Kurrum Agency without addressing those contrary matters. The primary judge erred by failing to find that jurisdictional...

Jurisdiction
Australia
Judgment Date
02 June 2022
Procedural Posture
Migration Appeal From Federal Circuit Court Dismissal of Judicial Review Application Concerning Refusal of Safe Haven Enterprise (subclass 790) Visa / Appeal to the Federal Court of Australia
Outcome
Appeal upheld.
Legal Topics
['protection Visa' 'immigration Assessment Authority Review' 'jurisdictional Error' 'constructive Failure to Exercise Jurisdiction' 'country Information' 'well Founded Fear of Persecution' 'complementary Protection']
['migration Law' 'administrative Law'] ['protection Visa' 'immigration Assessment Authority Review' 'jurisdictional Error' 'constructive Failure to Exercise Jurisdiction' 'country Information' 'well Founded Fear of Persecution' 'complementary Protection']

Case Brief

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Procedural Posture

Migration Appeal From Federal Circuit Court Dismissal of Judicial Review Application Concerning Refusal of Safe Haven Enterprise (subclass 790) Visa / Appeal to the Federal Court of Australia

Legal Issues

  1. 1 ['Whether the Immigration Assessment Authority constructively failed to exercise its statutory review duty by failing to consider substantial submissions about volatility and future deterioration of the security situation in Kurrum Agency.' 'Whether the Immigration Assessment Authority failed to have regard to material aspects of the DFAT 2019 Report, including the assessment that Turis in Kurrum Agency still face a moderate risk of sectarian violence from militant groups because of their Shia faith.' 'Whether the primary judge erred in failing to find jurisdictional error by the Immigration Assessment Authority.']

Ratio Decidendi

The IAA fell into jurisdictional error because, although it considered risk in Pakistan and Kurrum Agency generally, it failed to address two central matters before it: the appellant's express submissions that the security situation in Kurrum Agency was fragile, volatile and at risk of deterioration, and the DFAT 2019 Report assessment that Turis in Kurrum Agency still face a moderate risk of sectarian violence from militant groups because of their Shia faith. The IAA could not reason to a conclusion that there was no real chance of the appellant suffering any harm in Kurrum Agency without addressing those contrary matters. The primary judge erred by failing to find that jurisdictional...

Court Disposition

Appeal upheld.

Orders

  • ['The appeal is upheld.' "The orders of the Federal Circuit Court of Australia made on 1 October 2020 are set aside and in lieu of those orders, the decision of the Immigration Assessment Authority made on 17 February 2021 affirming the decision of the Minister's delegate is quashed." "The matter, the subject of the...