DTM16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 259

DTM16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 259

The Authority failed to consider, in the required legal sense, Professor Maley's report and the related submissions about the vulnerability of Hazaras returning to Kabul without strong social connections. That failure was material because the report was highly credible, supported the appellant's contention that relocation to Kabul would be unreasonable, and consideration of it may realistically have led to a different conclusion on relocation. The primary judge therefore erred, and appeal ground 1(a) succeeded.

Jurisdiction
Australia
Judgment Date
22 March 2022
Procedural Posture
Migration Appeal Concerning Judicial Review of a Protection Visa Decision / Appeal From the Federal Circuit Court of Australia Dismissing an Application for Judicial Review of an Immigration Assessment Authority Decision
Outcome
Appeal allowed.
Legal Topics
['complementary Protection' 'protection Visa' 'relocation Within Receiving Country' 'reasonableness of Relocation to Kabul' 'jurisdictional Error' 'materiality' 'consideration of Review Material']
['migration Law' 'administrative Law' 'judicial Review'] ['complementary Protection' 'protection Visa' 'relocation Within Receiving Country' 'reasonableness of Relocation to Kabul' 'jurisdictional Error' 'materiality' 'consideration of Review Material']

Case Brief

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Procedural Posture

Migration Appeal Concerning Judicial Review of a Protection Visa Decision / Appeal From the Federal Circuit Court of Australia Dismissing an Application for Judicial Review of an Immigration Assessment Authority Decision

Legal Issues

  1. 1 ["Whether the Immigration Assessment Authority failed to give proper consideration to Professor William Maley's report and related submissions concerning the reasonableness of relocation to Kabul for a Hazara returnee without strong social connections." 'Whether the primary judge erred in holding that the Authority had considered that material despite not referring to it.' 'Whether any failure to consider the material was material because it deprived the appellant of a realistic possibility of a different outcome.']

Ratio Decidendi

The Authority failed to consider, in the required legal sense, Professor Maley's report and the related submissions about the vulnerability of Hazaras returning to Kabul without strong social connections. That failure was material because the report was highly credible, supported the appellant's contention that relocation to Kabul would be unreasonable, and consideration of it may realistically have led to a different conclusion on relocation. The primary judge therefore erred, and appeal ground 1(a) succeeded.

Court Disposition

Appeal allowed.

Orders

  • ['The appeal be allowed.' 'Set aside the orders of the Federal Circuit Court of Australia made on 24 July 2020 and, in their place, order that writs of certiorari and mandamus be issued quashing the decision made by the second respondent on 11 November 2016 and remitting the matter to the second respondent to be...