EMX17 v Minister for Immigration and Border Protection [2019] FCA 1337

EMX17 v Minister for Immigration and Border Protection [2019] FCA 1337

The Authority correctly applied the 'real chance' test under s 5J of the Migration Act 1958 (Cth). Its statement that future targeting of Shias in Islamabad and an increase in violence were speculative meant that those suggestions were conjecture or surmise unsupported by credible evidence, not that the appellant was required to prove persecution would occur. Read as a whole, the Authority's reasons disclosed no misunderstanding of the test, no internal contradiction, and no illogicality. The appellant's further points did not demonstrate error by the primary judge.

Jurisdiction
Australia
Judgment Date
23 August 2019
Procedural Posture
Migration Appeal From Federal Circuit Court Judicial Review of Immigration Assessment Authority Decision Affirming Refusal of a Safe Haven Enterprise Visa / Appeal
Outcome
Appeal dismissed with costs.
Legal Topics
['protection Visa' 'safe Haven Enterprise Visa' 'judicial Review' 'real Chance Test' 'well Founded Fear of Persecution' 'internal Relocation' 'jurisdictional Error' 'illogicality']
['migration Law' 'administrative Law'] ['protection Visa' 'safe Haven Enterprise Visa' 'judicial Review' 'real Chance Test' 'well Founded Fear of Persecution' 'internal Relocation' 'jurisdictional Error' 'illogicality']

Case Brief

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Procedural Posture

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

Legal Issues

  1. 1 ["Whether the Federal Circuit Court erred in failing to find that the Immigration Assessment Authority failed to apply the 'real chance' test when concluding there was no real chance the appellant would face serious harm in Islamabad." "Whether the Authority's references to possibilities being speculative demonstrated a misunderstanding of the test for a well-founded fear of persecution." "Whether passages in the Authority's reasons revealed internal contradiction or illogicality amounting to jurisdictional error."]

Ratio Decidendi

The Authority correctly applied the 'real chance' test under s 5J of the Migration Act 1958 (Cth). Its statement that future targeting of Shias in Islamabad and an increase in violence were speculative meant that those suggestions were conjecture or surmise unsupported by credible evidence, not that the appellant was required to prove persecution would occur. Read as a whole, the Authority's reasons disclosed no misunderstanding of the test, no internal contradiction, and no illogicality. The appellant's further points did not demonstrate error by the primary judge.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['The appeal is dismissed.' "The appellant must pay the first respondent's costs of the appeal, to be fixed in the amount of $4,500."]