CGA15 v Minister for Home Affairs

• Jurisdiction: Australia Federal only
• Court: Federal Court (Australia)
• Judgment Date: 15 March 2019
• Neutral Citation: [2019] FCAFC 46
• Date: 15 March 2019

FEDERAL COURT OF AUSTRALIA

CGA15 v Minister for Home Affairs [2019] FCAFC 46

Appeal from:	CGA15 v Minister for Immigration & Anor [2018] FCCA 1450
File number:	VID 767 of 2018
Judges:	MURPHY, MORTIMER AND O'CALLAGHAN JJ
Date of judgment:	15 March 2019
Catchwords:	MIGRATION – appeal from decision of the Federal Circuit Court dismissing application for judicial review of decision of Administrative Appeals Tribunal to affirm decision not to grant appellant a protection visa – principles relevant to leave to raise new ground of appeal – whether Tribunal applied correct approach to “real chance” test – whether Tribunal engaged in flawed statistical analysis of risk to appellant in finding he could safely relocate – appeal upheld
Legislation:	Migration Act 1958 (Cth)
Cases cited:	ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109; [2016] FCAFC 174 ARK16 v Minister for Immigration and Border Protection [2018] FCA 825 Chan v Minister for Immigration and Border Protection [2018] FCA 1323 Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 CID15 v Minister for Immigration and Border Protection [2017] FCA 780 DZADQ v Minister for Immigration and Border Protection (2014) 143 ALD 659; [2014] FCA 754 Hossain v Minister for Immigration and Border Protection (2018) 359 ALR 1; [2018] HCA 34 Iyer v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1788 Melbourne Stadiums Ltd v Sautner [2015] FCAFC 20 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v S152/2003 (2004) 222 CLR 1 NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51; [2005] FCAFC 134 O’Brien v Komesaroff (1982) 150 CLR 310 SRBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 79 ALD 723; [2003] FCA 1387 SZQBN v Minister for Immigration and Border Protection (2014) 226 FCR 68; [2014] FCA 686 Water Board v Moustakas (1988) 180 CLR 491
Date of hearing:	20 November 2018
Registry:	Victoria
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	65
Counsel for the Appellant:	Mr A Aleksov
Solicitor for the Appellant:	Esser Legal
Counsel for the First Respondent:	Mr N Wood
Solicitor for the First Respondent:	Clayton Utz
Solicitor for the Second Respondent:	The Second Respondent filed a submitting notice

ORDERS

		VID 767 of 2018
BETWEEN:	CGA15 Appellant
AND:	MINISTER FOR HOME AFFAIRS First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGES:	MURPHY, MORTIMER AND O’CALLAGHAN JJ
DATE OF ORDER:	15 MARCH 2019

THE COURT ORDERS THAT:

1. The Appellant have leave to file an amended notice of appeal.

2. The appeal be allowed.

3. The orders made by the Federal Circuit Court on 7 June 2018 be set aside and, in lieu thereof, the Court makes the following orders:

   1. an order in the nature of certiorari to quash the decision of the Administrative Appeals Tribunal dated 28 September 2015;

   2. an order in the nature of mandamus requiring the Administrative Appeals Tribunal to re-determine according to law the application for review of the decision of the delegate of the First Respondent dated 8 September 2014;

   3. there be no order as to costs of the proceeding before Federal Circuit Court; and

   4. the First Respondent pay the Appellant’s costs of the appeal.

4. The parties have liberty to file short submissions in relation to costs, within seven days.

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

REASONS FOR JUDGMENT

THE COURT:

introduction

1. This is an appeal from a decision of the Federal Circuit Court which dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal): see CGA15 v Minister for Immigration & Another [2018] FCCA 1450. The Tribunal had affirmed a decision of a delegate of the first respondent, the Minister for Home Affairs (Minister), to refuse to grant the appellant a Protection (Class XA) Visa (protection visa) under s 65 of the Migration Act 1958 (Cth) (Act).

2. The appellant is a 37 year old citizen of Pakistan of Pashtun ethnicity and Shia Muslim faith. He is a member of the Turi/Bengesh tribe and lived in Parachinar in the Kurram Agency, Pakistan, prior to fleeing to Australia. He claims that if returned to Pakistan he faces a real chance of suffering serious harm at the hands of militant Sunni Muslim groups such as the Taliban and Tehrik-i-Taliban (TTP) (collectively, the Taliban) on the basis of his ethnicity (as a Pashtun of the Turi/Bangesh tribe), religion (Shia) or actual or imputed anti-Taliban political opinion.

3. The Tribunal accepted that there is a real chance the appellant will face serious or significant harm if returned to his home region in the Kurram Agency but found that there was not a real chance that, as a Shia, he would face such harm in cities outside that region such as Islamabad or Rawalpindi. The Tribunal concluded that it was reasonable for the appellant to relocate to such cities and that he therefore did not satisfy the criteria for a protection visa under s 36(2)(a) or (2)(aa) of the Act.

4. The appellant advances two grounds of appeal, one of which requires leave as it was not advanced before the Court below. For the reasons we explain, we consider it appropriate to grant leave to advance the new ground and to allow the appeal on that ground. In our view the Tribunal engaged in a flawed statistical analysis in reaching the conclusion that the appellant would not be at risk of harm as a Shia in Islamabad or Rawalpindi, and its decision is affected by jurisdictional error. The other ground of appeal should be dismissed.

The Facts

5. The appellant arrived in Australia by boat on 23 June 2012. He was granted a bridging visa and released into the community on 18 October 2012. He applied for a protection visa on 29 November 2012. In a statutory declaration accompanying his application he made claims which may be broadly summarised as follows:

1. he is from a village in Parachinar in Kurrum Agency, in what was the Federally Administered Tribal Areas in Pakistan. He has worked on his family’s farm since he was 10 or 11 and in 1992 he started driving a taxi to supplement his income from working on the farm;

2. since 2007 there has been conflict between Sunni and Shia Muslims in the area of Parachinar, and it is “very dangerous”. Sunnis support the Taliban and in...