CPE16 v Minister for Immigration and Border Protection [2019] FCA 2007

CPE16 v Minister for Immigration and Border Protection [2019] FCA 2007

The Immigration Assessment Authority's reasoning miscarried because it failed to consider that recommencing the appellant's petrol selling business in Kabul would necessarily require travel between Kabul and Herat through areas it had found posed a real risk of serious harm to him. That error was fundamental and pervasive, affected the relocation assessment under s 36(2B)(a), and it was not inevitable that the Authority would have reached or relied on the same alternative findings about welding or other work. The jurisdictional error was therefore material and the primary judge erred in holding otherwise.

Jurisdiction
Australia
Judgment Date
29 November 2019
Procedural Posture
Migration Appeal From Decision of the Federal Circuit Court of Australia Concerning Judicial Review of an Immigration Assessment Authority Decision Affirming Refusal of a Safe Haven Enterprise Visa / Appeal to the Federal Court of Australia
Outcome
Appeal allowed.
Legal Topics
['protection Visa' 'safe Haven Enterprise Visa' 'jurisdictional Error' 'materiality' 'relocation' 'complementary Protection' 'risk of Significant Harm' 'immigration Assessment Authority']
['migration Law' 'administrative Law'] ['protection Visa' 'safe Haven Enterprise Visa' 'jurisdictional Error' 'materiality' 'relocation' 'complementary Protection' 'risk of Significant Harm' 'immigration Assessment Authority']

Case Brief

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Procedural Posture

Migration Appeal From Decision of the Federal Circuit Court of Australia Concerning Judicial Review of an Immigration Assessment Authority Decision Affirming Refusal of a Safe Haven Enterprise Visa / Appeal to the Federal Court of Australia

Legal Issues

  1. 1 ['Whether the Immigration Assessment Authority committed jurisdictional error by failing to consider whether the appellant would face a real risk of significant harm if he relocated to Kabul and operated his petrol selling business requiring travel between Kabul and Herat.' "Whether the primary judge erred in holding that the Immigration Assessment Authority's error was not material." 'Whether it was inevitable that the Immigration Assessment Authority would have relied on alternative findings that the appellant could work as a welder or in another profession in Kabul.' "Whether the Minister's notice of contention that the primary judge erred in finding a failure to consider the Kabul-Herat travel requirement should be accepted."]

Ratio Decidendi

The Immigration Assessment Authority's reasoning miscarried because it failed to consider that recommencing the appellant's petrol selling business in Kabul would necessarily require travel between Kabul and Herat through areas it had found posed a real risk of serious harm to him. That error was fundamental and pervasive, affected the relocation assessment under s 36(2B)(a), and it was not inevitable that the Authority would have reached or relied on the same alternative findings about welding or other work. The jurisdictional error was therefore material and the primary judge erred in holding otherwise.

Court Disposition

Appeal allowed.

Orders

  • ['The appeal be allowed.' 'The orders of the Federal Circuit Court of Australia dated 16 November 2018 be set aside.' 'The decision of the Immigration Assessment Authority dated 17 August 2016 be set aside.' 'The matter be remitted to the Immigration Assessment Authority for determination according to law.' "The...