CMB18 v Minister for Home Affairs [2022] FCA 343

CMB18 v Minister for Home Affairs [2022] FCA 343

The appeal was dismissed because the IAA addressed the appellant's claims as actually advanced, including his likely return to Jaghori, his family and employment circumstances, travel from Kabul to Jaghori, travel around Hazarajat and adjacent areas, and risks arising from ethnicity, religion, western returnee status, former school employment, refusal to obey Taliban orders and general violence. The IAA was not required to determine a case based on a real risk of significant harm in Kabul that had not been advanced, and its consideration of reasonableness and practicability under s 36(2B)(a) was sufficiently fact-specific. Ground 3 was granted leave but failed because the IAA considered...

Jurisdiction
Australia
Judgment Date
06 April 2022
Procedural Posture
Migration Appeal Concerning Refusal of a Safe Haven Enterprise (subclass 790) Visa and Alleged Jurisdictional Error by the Immigration Assessment Authority / Appeal From the Federal Circuit Court of Australia Dismissing an Application for Constitutional Writs
Outcome
Appeal dismissed with costs; leave granted to amend the notice of appeal to rely on ground 3, but ground 3 dismissed.
Legal Topics
['protection Visas' 'refugee Criterion' 'complementary Protection' 'jurisdictional Error' 'internal Relocation' 'safe Haven Enterprise Visa']
['migration' 'administrative Law' 'human Rights'] ['protection Visas' 'refugee Criterion' 'complementary Protection' 'jurisdictional Error' 'internal Relocation' 'safe Haven Enterprise Visa']

Case Brief

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Procedural Posture

Migration Appeal Concerning Refusal of a Safe Haven Enterprise (subclass 790) Visa and Alleged Jurisdictional Error by the Immigration Assessment Authority / Appeal From the Federal Circuit Court of Australia Dismissing an Application for Constitutional Writs

Legal Issues

  1. 1 ['Whether the primary judge erred by failing to find that the IAA misapplied the complementary protection criterion in s 36(2)(aa) of the Migration Act 1958 (Cth).' 'Whether the primary judge erred by failing to find that the IAA misapplied s 36(2B)(a) of the Migration Act 1958 (Cth) by failing to consider whether it was reasonable or practicable for the appellant to remain in or around Jaghori.' 'Whether leave should be granted to raise ground 3 and whether the IAA conflated the question of real risk of significant harm in Jaghori with whether it was reasonable and practicable for the appellant to reside in Jaghori.']

Ratio Decidendi

The appeal was dismissed because the IAA addressed the appellant's claims as actually advanced, including his likely return to Jaghori, his family and employment circumstances, travel from Kabul to Jaghori, travel around Hazarajat and adjacent areas, and risks arising from ethnicity, religion, western returnee status, former school employment, refusal to obey Taliban orders and general violence. The IAA was not required to determine a case based on a real risk of significant harm in Kabul that had not been advanced, and its consideration of reasonableness and practicability under s 36(2B)(a) was sufficiently fact-specific. Ground 3 was granted leave but failed because the IAA considered...

Court Disposition

Appeal dismissed with costs; leave granted to amend the notice of appeal to rely on ground 3, but ground 3 dismissed.

Orders

  • ['Leave is granted to the appellant to amend the notice of appeal to rely on ground 3 of the grounds of appeal.' 'Ground 3 of the appeal is dismissed.' 'The appeal is otherwise dismissed.' "The appellant pay the first respondent's costs of and incidental to the appeal."]