ELX17 v Minister for Immigration and Border Protection [2018] FCA 1372

ELX17 v Minister for Immigration and Border Protection [2018] FCA 1372

Fairly read, the IAA failed to consider the appellant's claim that either he or his family would have to travel to see each other if he relocated to Kabul, despite accepting that Hazaras faced a real risk of harm travelling by road between Kabul and the appellant's home region. The IAA considered only the impact of continued separation and did not expressly or implicitly deal with the claim that travel would occur. This was a failure to consider an integer of the appellant's claim concerning why relocation to Kabul was not reasonable for complementary protection purposes, amounting to jurisdictional error.

Jurisdiction
Australia
Judgment Date
05 September 2018
Procedural Posture
Migration Appeal From Dismissal of an Application for Judicial Review of an Immigration Assessment Authority Decision Affirming Refusal of a Protection Visa / Appeal to the Federal Court of Australia From ELX17 V Minister for Immigration and Border Protection [2018] FCCA 775
Outcome
Appeal allowed.
Legal Topics
['protection Visa' 'complementary Protection' 'internal Relocation' 'jurisdictional Error' 'mandatory Relevant Consideration' 'hazara Ethnicity' 'afghanistan']
['migration' 'administrative Law' 'human Rights'] ['protection Visa' 'complementary Protection' 'internal Relocation' 'jurisdictional Error' 'mandatory Relevant Consideration' 'hazara Ethnicity' 'afghanistan']

Case Brief

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Procedural Posture

Migration Appeal From Dismissal of an Application for Judicial Review of an Immigration Assessment Authority Decision Affirming Refusal of a Protection Visa / Appeal to the Federal Court of Australia From ELX17 V Minister for Immigration and Border Protection [2018] FCCA 775

Legal Issues

  1. 1 ['Whether the Immigration Assessment Authority failed to consider the claim that the appellant or his family would travel to see each other as an impediment to relocation to Kabul when considering complementary protection.' "Whether the primary judge erred in holding that the Immigration Assessment Authority implicitly rejected the claim that the appellant or his family would travel on dangerous roads between Kabul and the appellant's home region."]

Ratio Decidendi

Fairly read, the IAA failed to consider the appellant's claim that either he or his family would have to travel to see each other if he relocated to Kabul, despite accepting that Hazaras faced a real risk of harm travelling by road between Kabul and the appellant's home region. The IAA considered only the impact of continued separation and did not expressly or implicitly deal with the claim that travel would occur. This was a failure to consider an integer of the appellant's claim concerning why relocation to Kabul was not reasonable for complementary protection purposes, amounting to jurisdictional error.

Court Disposition

Appeal allowed.

Orders

  • ['The appeal be allowed.' 'The orders made by the Federal Circuit Court on 28 March 2018 be set aside.' 'The decision of the second respondent dated 6 September 2017 is set aside and the matter is remitted to the second respondent for determination according to law.' "The first respondent is to pay the applicant's...