CXT16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 645

CXT16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 645

The Authority considered the general security situation in Kabul only when deciding that the appellant did not face a real risk of significant harm there, but its reasons did not show that it considered the risk of harm from generalised violence, falling below that threshold, when deciding whether relocation to Kabul was reasonable. Because the appellant had squarely raised the security situation in Kabul as an objection to relocation and there was a realistic possibility of a different outcome had that matter been considered, the error was material and jurisdictional. The Authority did consider and reject the discrimination issue sufficiently, so only ground 2 succeeded.

Jurisdiction
Australia
Judgment Date
15 June 2023
Procedural Posture
Migration Appeal From Federal Circuit Court Dismissal of Judicial Review Application Concerning Refusal of a Temporary Protection Visa / Appeal to the Federal Court of Australia
Outcome
Appeal allowed.
Legal Topics
['protection Visa' 'complementary Protection' 'relocation Within Receiving Country' 'reasonableness of Relocation to Kabul' 'jurisdictional Error' 'immigration Assessment Authority']
['migration Law' 'administrative Law' 'human Rights'] ['protection Visa' 'complementary Protection' 'relocation Within Receiving Country' 'reasonableness of Relocation to Kabul' 'jurisdictional Error' 'immigration Assessment Authority']

Case Brief

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Procedural Posture

Migration Appeal From Federal Circuit Court Dismissal of Judicial Review Application Concerning Refusal of a Temporary Protection Visa / Appeal to the Federal Court of Australia

Legal Issues

  1. 1 ['Whether the Immigration Assessment Authority failed to consider the risk of harm from generalised or insurgent violence in Kabul, falling below the real risk threshold, when assessing whether relocation to Kabul was reasonable under s 36(2B)(a) of the Migration Act 1958 (Cth).' "Whether the Immigration Assessment Authority failed to consider the appellant's objection that relocation to Kabul was not reasonable because of discrimination he would face as a returnee from a western country."]

Ratio Decidendi

The Authority considered the general security situation in Kabul only when deciding that the appellant did not face a real risk of significant harm there, but its reasons did not show that it considered the risk of harm from generalised violence, falling below that threshold, when deciding whether relocation to Kabul was reasonable. Because the appellant had squarely raised the security situation in Kabul as an objection to relocation and there was a realistic possibility of a different outcome had that matter been considered, the error was material and jurisdictional. The Authority did consider and reject the discrimination issue sufficiently, so only ground 2 succeeded.

Court Disposition

Appeal allowed.

Orders

  • ['The appeal be allowed.' 'The decision of the Immigration Assessment Authority be quashed, and a writ of mandamus issued requiring the matter be determined in accordance with the law.' "The Minister pays the appellant's costs below and of the appeal."]