SZSJB v Minister for Immigration and Border Protection [2017] FCA 229

SZSJB v Minister for Immigration and Border Protection [2017] FCA 229

The appellant's materials sufficiently raised a claim that relocation to Kabul was unreasonable because he might be caught up in attacks by insurgent groups present in Kabul, given the scale, frequency and increasing number of attacks on varied targets, including Afghan civilians. Although the assessor considered whether the appellant was personally targeted as a Hazara Shia, a failed asylum seeker, or by Islamic State, she did not consider the risk that he might be harmed despite not being targeted. That failure to consider essential integers of the relocation claim was legal error, so the appeal was allowed.

Jurisdiction
Australia
Judgment Date
10 March 2017
Procedural Posture
Migration Appeal From Federal Circuit Court Judicial Review Decision / Appeal From Dismissal of Application for Judicial Review of International Treaties Obligations Assessment
Outcome
Appeal allowed with costs.
Legal Topics
['international Treaties Obligations Assessment' 'non Refoulement Obligations' 'refugee Convention' 'relocation' 'failure to Consider Claims' 'jurisdictional Error']
['migration' 'administrative Law' 'human Rights'] ['international Treaties Obligations Assessment' 'non Refoulement Obligations' 'refugee Convention' 'relocation' 'failure to Consider Claims' 'jurisdictional Error']

Case Brief

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Procedural Posture

Migration Appeal From Federal Circuit Court Judicial Review Decision / Appeal From Dismissal of Application for Judicial Review of International Treaties Obligations Assessment

Legal Issues

  1. 1 ["What is the correct characterisation of the appellant's claims that it would not be reasonable for him to relocate to Kabul?" 'Did the assessor consider those claims?' 'Whether the assessor erred in concluding that it would be reasonable to require the appellant to relocate to Kabul if returned to Afghanistan.']

Ratio Decidendi

The appellant's materials sufficiently raised a claim that relocation to Kabul was unreasonable because he might be caught up in attacks by insurgent groups present in Kabul, given the scale, frequency and increasing number of attacks on varied targets, including Afghan civilians. Although the assessor considered whether the appellant was personally targeted as a Hazara Shia, a failed asylum seeker, or by Islamic State, she did not consider the risk that he might be harmed despite not being targeted. That failure to consider essential integers of the relocation claim was legal error, so the appeal was allowed.

Court Disposition

Appeal allowed with costs.

Orders

  • ['The appeal is allowed.' 'The orders of the Federal Circuit Court made on 12 July 2016 are set aside.' "The first respondent is to pay the appellant's costs in the Federal Court and in the Federal Circuit Court as agreed or assessed." 'The parties are to provide short minutes of order to otherwise give effect to...