BYH19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

• Jurisdiction: Australia Federal only
• Court: Federal Court (Australia)
• Judgment Date: 03 March 2021
• Neutral Citation: [2021] FCA 157
• Date: 03 March 2021

Federal Court of Australia

BYH19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 157

Appeal from:	BYH19 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3310
File number:	NSD 2089 of 2019
Judgment of:	ANASTASSIOU J
Date of judgment:	3 March 2021
Catchwords:	MIGRATION – appeal from Federal Circuit Court –protection visa application – whether Administrative Appeals Tribunal failed to give real, genuine and proper consideration to a newspaper report and DFAT information - whether Tribunal engaged in illogical and/or irrational reasoning – appeal allowed
Legislation:	Migration Act 1958 (Cth), s 36(2)
Cases cited:	AWG18 v Minister for Home Affairs [2020] FCA 744 BMP15 v Minister for Immigration and Border Protection [2018] FCA 1291 CGA15 v Minister for Home Affairs [2019] FCAFC 46; 268 FCR 362 DTN16 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2019] FCA 1525 DZT18 v Minister for Home Affairs [2019] FCA 1639 Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 Minister for Immigration & Citizenship v SZGUR [2011] HCA 1; 241 CLR 594 Minister for Immigration and Border Protection v MZYTS and Another [2013] FCAFC 114; 230 FCR 431 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470; 181 FCR 113 SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	59
Date of hearing:	30 October 2020
Counsel for the Appellant:	Mr D. McDonald-Norman
Solicitor for the Appellant:	Hunter Shafiz Lawyers
Counsel for the First Respondent:	Mr T. Reilly
Solicitor for the First Respondent:	Minter Ellison Lawyers
Counsel for the Second Respondent:	The Second Respondent filed a submitting notice

ORDERS

		NSD 2089 of 2019
BETWEEN:	BYH19 Appellant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

order made by:	ANASTASSIOU J
DATE OF ORDER:	3 March 2021

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The orders made by the primary judge on 18 November 2019 be set aside.

3. There be orders in the nature of certiorari and mandamus quashing the decision of the Administrative Appeals Tribunal dated 29 April 2019 and remitting the matter to the Tribunal to be determined according to law.

4. The First Respondent pay the Appellant’s costs of and incidental to the appeal, fixed in the sum of $12,000.

5. The First Respondent pay the Appellant’s costs of and incidental to proceeding SYG 1167 of 2019 in the Federal Circuit Court, fixed in the sum of $7,467.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ANASTASSIOU J:

1. The Appellant has appealed from a decision of the Federal Circuit Court of Australia: BYH19 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3310. In that decision, the primary judge dismissed an application for judicial review of a decision of the Second Respondent, the Administrative Appeals Tribunal. The Tribunal had affirmed a decision of a delegate of the First Respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, to refuse to grant the Appellant a Protection Visa (Class XA) under the Migration Act 1958 (Cth).

2. For the reasons that follow, the appeal is allowed.

Background

3. The Appellant is a citizen of Pakistan. He is from Peshawar, a city in the province of Khyber Pakhtunkhwa. He arrived in Australia on a student visa in March 2013. That visa was valid until 15 March 2016. The Appellant applied for a Protection Visa on 23 July 2014.

4. In summary, the Appellant claimed that if returned to Pakistan he feared harm for the following reasons:

1. the Appellant’s father is involved in a construction company which has the government as a major client, making the Appellant a target for terrorist groups in Pakistan;

2. 'Tehrek-e-Taliban', a group of terrorists in Peshawar, had allegedly sent him letters threatening to find him and kill him when he returned to Pakistan around April to May 2014;

3. Peshawar, where he resided in Pakistan, is very close to the Khyber Agency, a Taliban controlled area in which the Appellant claimed young people from the community were forcibly recruited to join the Taliban and asked to keep their beards; and

4. the Appellant was not safe in Pakistan as there have been many violent attacks and bombings, and that state does not have adequate resources to protect him.

5. The Appellant submitted various documents in support of his application, including two letters purportedly from the Taliban requiring him to report to a court and threatening him with death and a newspaper article dated 12 November 2014 describing a bomb allegedly placed in front of the Appellant’s uncle’s house. The newspaper article was published in the ‘Daily AAJ’, a newspaper from Peshawar, and stated (translated in English):

BOMB PLACED IN FRONT OF THE HOUSE IN KHAZANA DEACTIVATED

Unknown persons had placed explosive material in front of a businessman's house. Search operation by the Police

Peshawar (Crimes Reporter). Peshawar Police and Bomb Disposal Squad interrupted a terrorist plan by deactivating 5 kilo explosive material placed near a petrol pump. According to the details, Khazana Police Station received information yesterday about a suspicious item lying on the way near the petrol station in Shero Jhangi. At this, a large number of police force arrived at the scene; they surrounded the area and immediately called for BDU who declared the suspicious item as a bomb and exploded it using water charge. The entire city was shaken by the explosion, causing extreme fear among the people. According to BDU unknown terrorists had installed 5 kilo explosive material, linked with a time device, in order to spread terror.

6. On 19 February 2016, a delegate of the Minister refused to grant the Appellant a protection visa because the Appellant did not satisfy s 36(2) of the Act. That section provides:

36 Protection visas—criteria provided for by this Act

(2) A criterion for a protection visa is that the applicant for the visa is:

(a) a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa) a non‑citizen in Australia (other than a non‑citizen...