DFO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 38

DFO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 38

The Tribunal did not err by considering only the risks associated with voluntary removal to Iran after finding that involuntary removal was not possible based on country information. The statutory task under s 36(2)(aa) does not require hypothetical consideration of involuntary removal in the absence of substantial grounds for its occurrence. There was no jurisdictional error and the Tribunal properly considered the protection visa criteria.

Jurisdiction
Australia
Judgment Date
15 March 2023
Procedural Posture
Appeal From Federal Circuit Court of Australia and Administrative Appeals Tribunal Decisions / Final Appellate Judgment in Federal Court of Australia
Outcome
Appeals dismissed
Legal Topics
['protection Visas' 'complementary Protection' 'jurisdictional Error' 'interpretation of S 36(2)(aa) Migration Act 1958 (cth)' 'involuntary and Voluntary Removal' 'risk of Harm on Return' 'refugee Convention']
['migration Law' 'administrative Law' 'human Rights Law'] ['protection Visas' 'complementary Protection' 'jurisdictional Error' 'interpretation of S 36(2)(aa) Migration Act 1958 (cth)' 'involuntary and Voluntary Removal' 'risk of Harm on Return' 'refugee Convention']

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Procedural Posture

Appeal From Federal Circuit Court of Australia and Administrative Appeals Tribunal Decisions / Final Appellate Judgment in Federal Court of Australia

Legal Issues

  1. 1 ['Whether the Tribunal erred in considering risk of harm only on voluntary return rather than involuntary return' 'Proper construction and application of s 36(2)(aa) of the Migration Act 1958 (Cth)' 'Whether jurisdictional error occurred by failing to consider the claim based on involuntary removal to Iran']

Ratio Decidendi

The Tribunal did not err by considering only the risks associated with voluntary removal to Iran after finding that involuntary removal was not possible based on country information. The statutory task under s 36(2)(aa) does not require hypothetical consideration of involuntary removal in the absence of substantial grounds for its occurrence. There was no jurisdictional error and the Tribunal properly considered the protection visa criteria.

Court Disposition

Appeals dismissed

Orders

  • ['Appeal dismissed (WAD 304 of 2020 and SAD 145 of 2020).' "Appellants to pay first respondent's costs to be assessed on a lump sum basis by a registrar of the Court if not agreed."]