CAR15 v Minister for Immigration and Border Protection [2019] FCAFC 155

CAR15 v Minister for Immigration and Border Protection [2019] FCAFC 155

The Tribunal accepted that returning the infant appellant to Nigeria would expose her to a well-founded fear of persecution and a real risk of significant harm through FGM in her parents' home villages, but it avoided protection obligations by treating Lagos as a reasonable relocation option. Because the appellant was a child with no independent agency and the Tribunal's analysis proceeded on the basis that any relocation would occur at her parents' initiative, the Tribunal asked the wrong question: whether it was reasonable for her parents to relocate to Lagos with her, rather than whether the appellant herself had or would have a reasonable opportunity to relocate. That misunderstanding...

Jurisdiction
Australia
Judgment Date
09 September 2019
Procedural Posture
Migration Appeal From the Federal Circuit Court of Australia Concerning Judicial Review of an Administrative Appeals Tribunal Decision Affirming Refusal of a Protection (class Xa) Visa / Appeal
Outcome
Appeal allowed.
Legal Topics
['protection Visa' 'complementary Protection' 'jurisdictional Error' 'reasonableness of Relocation' 'section 424 a Particulars' 'material Contention' 'female Genital Mutilation']
['migration' 'administrative Law' 'judicial Review'] ['protection Visa' 'complementary Protection' 'jurisdictional Error' 'reasonableness of Relocation' 'section 424 a Particulars' 'material Contention' 'female Genital Mutilation']

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Procedural Posture

Migration Appeal From the Federal Circuit Court of Australia Concerning Judicial Review of an Administrative Appeals Tribunal Decision Affirming Refusal of a Protection (class Xa) Visa / Appeal

Legal Issues

  1. 1 ["Whether the Tribunal committed jurisdictional error by conflating the reasonableness of the appellant's relocation with the reasonableness of her parents' relocation under s 36(2B)(a) of the Migration Act 1958 (Cth)." 'Whether the Tribunal failed to provide clear particulars under s 424A of the Migration Act 1958 (Cth) of information said to be adverse to the appellant.' "Whether the Tribunal failed to consider the appellant's contention that she would be homeless if returned or relocated to Lagos."]

Ratio Decidendi

The Tribunal accepted that returning the infant appellant to Nigeria would expose her to a well-founded fear of persecution and a real risk of significant harm through FGM in her parents' home villages, but it avoided protection obligations by treating Lagos as a reasonable relocation option. Because the appellant was a child with no independent agency and the Tribunal's analysis proceeded on the basis that any relocation would occur at her parents' initiative, the Tribunal asked the wrong question: whether it was reasonable for her parents to relocate to Lagos with her, rather than whether the appellant herself had or would have a reasonable opportunity to relocate. That misunderstanding...

Court Disposition

Appeal allowed.

Orders

  • ['The appeal be allowed.' 'The orders of the Federal Circuit Court of Australia dated 7 September 2018 be set aside and, in lieu thereof, it be ordered that a writ of certiorari be issued quashing the decision of the second respondent made on 9 September 2015 in case number 1412486.' 'A writ of mandamus be issued...