FCS17 v Minister for Home Affairs [2020] FCAFC 68

FCS17 v Minister for Home Affairs [2020] FCAFC 68

Section 5J(1)(c) of the Migration Act 1958 (Cth), as inserted by the Migration and Maritime Powers Legislation Amendment (Resolving the Legacy Caseload) Act 2014 (Cth), excludes any 'reasonableness' qualification in assessing whether an applicant for a protection visa has a well-founded fear of persecution. The relevant inquiry is whether there is any area in the applicant's home country that is habitable, safe, and legally accessible where the applicant would not face persecution for a Convention reason. If such a place exists, the applicant does not satisfy the statutory requirement for refugee status, regardless of whether relocation there would be reasonable in a broader practical or...

Parties
Appellant: FCS17; Appellant: DWY17; First Respondent: Minister for Home Affairs; Second Respondent: Immigration Assessment Authority
Jurisdiction
Australia
Judgment Date
21 April 2020
Procedural Posture
Appeal / Judgment on Appeal From the Federal Circuit Court
Outcome
Appeals dismissed
Legal Topics
Protection Visas, Internal Relocation Principle, Interpretation of 'well Founded Fear', Application of S 5 J(1)(c) Migration Act 1958
Migration Law Statutory Interpretation Refugee Law Protection Visas Internal Relocation Principle Interpretation of 'well Founded Fear' Application of S 5 J(1)(c) Migration Act 1958

Case Brief

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Parties

FCS17

Appellant

DWY17

Appellant

Minister for Home Affairs

First Respondent

Immigration Assessment Authority

Second Respondent

Procedural Posture

Appeal / Judgment on Appeal From the Federal Circuit Court

Legal Issues

  1. 1 Proper construction of s 5J(1)(c) of the Migration Act 1958 (Cth) concerning internal relocation and whether 'reasonableness' is a required consideration;
  2. 2 Whether the Immigration Assessment Authority and Federal Circuit Court erred by not considering 'reasonableness' in assessing internal relocation for protection visa applications.

Ratio Decidendi

Section 5J(1)(c) of the Migration Act 1958 (Cth), as inserted by the Migration and Maritime Powers Legislation Amendment (Resolving the Legacy Caseload) Act 2014 (Cth), excludes any 'reasonableness' qualification in assessing whether an applicant for a protection visa has a well-founded fear of persecution. The relevant inquiry is whether there is any area in the applicant's home country that is habitable, safe, and legally accessible where the applicant would not face persecution for a Convention reason. If such a place exists, the applicant does not satisfy the statutory requirement for refugee status, regardless of whether relocation there would be reasonable in a broader practical or...

Court Disposition

Appeals dismissed

Orders

  • Appeal SAD 80 of 2019 dismissed; appellant to pay first respondent's costs to be assessed if not agreed.
  • Appeal SAD 96 of 2019 dismissed; appellant to pay first respondent's costs to be assessed if not agreed.