ESD17 v Minister for Immigration and Border Protection [2018] FCA 1716

ESD17 v Minister for Immigration and Border Protection [2018] FCA 1716

The Authority's failure to ask whether the appellant's silence about past sexual abuse was compelled by fear of persecution, when considering if there was a real chance of persecution under s 5J(1)(b), was an error of law amounting to jurisdictional error, requiring the impugned decision to be quashed and reconsidered.

Parties
Appellant: ESD17; First Respondent: Minister for Immigration and Border Protection; Second Respondent: Immigration Assessment Authority
Jurisdiction
Australia
Judgment Date
14 December 2018
Procedural Posture
Judicial Review Appeal / Federal Court of Australia Appeal From Federal Circuit Court
Outcome
Appeal allowed
Legal Topics
Protection Visas, Refugee Status, Judicial Review, Persecution, Behaviour Modification, Jurisdictional Error
Migration Law Administrative Law Human Rights Protection Visas Refugee Status Judicial Review Persecution Behaviour Modification +1 more

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Parties

ESD17

Appellant

Minister for Immigration and Border Protection

First Respondent

Immigration Assessment Authority

Second Respondent

Procedural Posture

Judicial Review Appeal / Federal Court of Australia Appeal From Federal Circuit Court

Legal Issues

  1. 1 Whether the Authority erred in law by failing to consider if the appellant's silence about prior sexual abuse was due to fear of persecution when assessing a well-founded fear under s 5J(1)(b) Migration Act 1958 (Cth)

Ratio Decidendi

The Authority's failure to ask whether the appellant's silence about past sexual abuse was compelled by fear of persecution, when considering if there was a real chance of persecution under s 5J(1)(b), was an error of law amounting to jurisdictional error, requiring the impugned decision to be quashed and reconsidered.

Court Disposition

Appeal allowed

Orders

  • The appeal is allowed.
  • The judgment of the Federal Circuit Court of Australia delivered on 11 April 2018 is set aside.